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COPYRIGHT, 1905, BY S. P. KTIAS. 



S. P ELIAS 
ATTORNEY AT LAW 
202 SANSOME ST. 

SAN FRANCISCO, CAL. 




PREFACE. 


The object of this brochure is to ascertain the legal status of the 
theater ticket, and to extract the law on the subject from the decided 
cases. As the theater ticket is an article of daily purchase and 
sale, which has been rarely discussed by the law writers, it is 
hoped that the treatise will prove of value to theatrical managers, 
and to the profession generally. ^ 

The scope of the book will comprehend the development of the 
several rights, duties and responsibilities of the seller and the pur¬ 
chaser of the ticket, of the manager of the theater, and of the spec¬ 
tator, insofar as they flow from the purchase or sale of the ticket. 
After the status of the ticket has been shown, it is intended to discuss 
the bearing of the recent amendments to the Federal Constitution, 
and of the civil rights statutes enacted by Congress in pursuance 
thereof, upon the theater ticket generally. The subject of racial 
discrimination, and the phases of the subject presented by State 
legislation upon the rights of colored persons and others to admis¬ 
sion to theaters will then be fully treated. The subject of speculation 
in theater tickets will receive attention. Special reference will also 
be made to the laws passed by many States which directly aifect the 
legal status of the theater ticket, and other matters of incidental im¬ 
portance to managers, having special reference to the theater ticket, 
will be noticed in their proper place. The design is to state the law 
fully, making particular reference to the facts and the text of the 
decisions where necessary. In flne, it is intended to render the 
work complete and practical. 

S. P. Elias. 

San Francisco, Cal., March 1st, 1905. 

202 Sansome street. 



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CONTENTS. 


CHAPTER I. 

Theater Ticket a License . 1 

CHAPTER IL 

Revocability of the Theater Ticket . o 

CHAPTER III. 

Non-assignability of the Theater Ticket .10 

CHAPTER IV. 

Rights After Revocation .14 

CHAPTER V. 

Audience’s Right to Criticise .18 

CHAPTER VI. 

Liability of Managers^.•.21 

CHAPTER VII. 

Theater Ticket Speculation .28 

CHAPTER VIII. 

Discrimination in Theaters .35 











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CHAPTER I. 


Theater Ticket a License. 

A theater ticket is a simple license. It is a mere license to enter 
the theater, and remain there during the performance. It is a license 
for pleasure only. 

This proposition was first established in the English case of Wood 
vs. Leadhitter (1). In this case, the plaintiff. Wood, had purchased 
a ticket of admission to the Doncaster Race Course, and upon this 
ticket was admitted to the enclosure attached to the grand stand. 
While the races were in progress, he was requested to leave, and 
was notified that if he did not go peaceably, force would be used 
to expel him. Upon his refusal to move from the stand, he was 
forcibly ejected. It was assumed at the trial that he had been guilty 
of no misconduct, and that his presence in the stand would have been 
justified by his possession of the ticket, had he not been requested 
to leave. 

The trial court held that it was lawful for the proprietor, without 
assigning any reason for what he did, to order Wood to quit the 
enclosure, and that, if a reasonable time had elapsed after notice 
to depart had been given, during which Wood might have gone away, 
at the time of his removal, he was not on the place in question by 
leave and license of the defendant. The appellate court sustained the 
lower court, and in an opinion which contains an exhaustive review 
of the law and the authorities, held that the ticket gave Wood a simple 
license, saying: “We have only to say that, acting upon the doctrine 
relative to licenses, the direction given the jury was correct.” 

In an earlier English case. Flight vs. Glossop (2), one of the 
points involved was the construction of the free use and enjoyment 
of two boxes in a theater, given as a part consideration for certain 
agreements. It was held that the “agreement relating to the free 
use and enjoyment of the boxes is a mere personal covenant”—in 
effect holding that the right of entry to the theater was a simple 
license; and in Coleman vs. Foster (3), it was also held that the 


(1) 13 M. & W., 838. 

(2) 2 Bing. N. C. 125; See Scott vs. Howard, 6 App. Cases, 295, House of 

Lords, 1881. 


(3) 1 H. & N. 37. 



2 


liberty of free admission to a theater was a license, the court saying 
that “the liberty of free admission must be a license or it is nothing.’* 

A case which followed the law as laid down in Wood vs. Lead- 
hitter, and which clearly presented the status of the theater ticket, 
and the right it gave its holder, was the Irish case of Malone vs. 
Harris (4). In the opinion in this case, the Lord Chancellor said: 
“The right of admission is hut a license to enter upon the premises 
of the licensor; there is not any grant of an interest in the subject 
of the license. It is simply a right of free entry for pleasure, granted 
for a pecuniary consideration, and so the case is governed by Wood 
vs. Leadhitter.^* 

The first case that arose in the United States in which the theater 
ticket was ruled upon was that of McCrea vs. Marsh (5), decided by 
the Supreme Court of Massachusetts in 1858. Plaintiff was excluded 
from a theater after he had bought at the box office, and offered at 
the door, one of the usual “dress circle” tickets. The verdict for 
the defendant was sustained on appeal; the court, in speaking of 
the permission to enter the dress circle obtained by the purchaser 
of the ticket, said: “It was a license legally revocable.’’ 

In Burton vs. Scherpf (6), another Massachusetts case, in which 
the facts were similar to the preceding case, the plaintiff entered the 
theater, and bought a ticket at the office. This ticket was delivered 
to the doorkeeper. The plaintiff was proceeding to his seat, when 
he was ordered out, and then forcibly ejected from the theater. The 
court held that “the sale of the ticket of admission to plaintiff was 
a license to plaintiff to enter the hall, and remain in it during the 
concert. The plaintiff had a mere license. ’ ’ 

Purcell vs. Daly (7) was a New York case which arose out of the 
efforts of Augustin Daly, the proprietor of Daly’s Theater in New 
York City, to stop speculation in tickets of admission to this theater. 
Tickets purchased on the street from a speculator were not honored 
at the theater, and the treasurer also refused to refund their purchase 
price when they were presented at the office by the holder. The 
holder then returned them to the speculator, who demanded that the 
treasurer repay him their cost. This was likewise refused. The 
speculator then assigned his alleged right to recover the price of the 
tickets to Purcell, who brought suit. The ticket issued by Daly con¬ 
tained the statement that it was a simple license, issued to the party 


(4) 11 Irish Ch. Reports, 33. 

(5) 78 Mass- 211 71 Am. Dec. 745. 

(6) 83 Mass. 133 79 Am. Dec. 717. 

(7) 19 Abb. N. Cas. 301. 




3 


applying to the same by name, and was not transferable and would 
be refused at the door if sold or purchased on the street. The judg¬ 
ment dismissing the complaint was, on appeal, affirmed. In its 
decision, the court said: “A theater ticket is simply a license to the 
party presenting the same to witness a performance to be given at 
a certain time.’’ 

The gist of this decision is that the proprietor of a licensed place 
of amusement has the right to exclude a person from entering his 
premises, although the person refused has purchased a ticket^of ad¬ 
mission. 

And in the recent case of Collister vs. Hay man et al. (8), it is 
said that “the weight of authority is to the effect that a theater ticket 
is merely a license given by the proprietor of a place of entertainment 
to the purchaser of that ticket to enter upon the premises of such 
proprietor to witness a performance” (9). 

Having seen that the courts have uniformly construed the theater 
ticket to be a mere license, it may be well, at this point, to digress, 
and to explain, insofar as may be necessary, the meaning and nature 
of that which the law denominates a license. As used in its applica¬ 
tion to the law of theater tickets, the term takes the definition given 
to it in the law of real property (10), and is governed in its nature 
and incidents by the rules of that branch of jurisprudence (11). In 
the law of real property, a license is merely an authority to do an 
act or a series of acts upon the land of the person who grants the 
license, without conferring upon the licensee any estate or title in 
the land. Its effect is to make lawful and exempt from liability acts 
which, without the license, would be unlawful and a trespass, and 
a violation of the rights of the licensor (12). 

Reasoning by analogy from the construction placed by the courts 
upon tickets of passage,' it being uniformly held that a passage ticket 
in ordinary form is merely a voucher, token or receipt, adopted for 
convenience, to show that the passenger has paid his fare from one 


(8) 75 N. Y. Supp. 1102. 

(9) See Drew vs. Peer, 93 Pa. St. 234. 

(10) Wood vs. LeadMtter, 13 M. & W. 838; Flight vs. Glossop, 2 Bing. 

N. 0. 125; Coleman vs. Foster, 1 H. & N. 37; Malone vs. Karris, 
11 Irish Ch. Keports, 33; McCrea vs. Marsh, 12 Gray, 211; 71 
Am. Dec. 745; Burton vs. Scherpf, 83 Mass. 133 "9 Am. Dec. 

717; Purcell vs. Daly, 19 Abb. N. Gas. 301; Collister vs. Dayman, 
75 N. y. Sup. 1102. 

(11) ('ases in preceding note. 

(12) Am. & Eug. Enc. of La^, Vol. 18, p. 1127, et seq.; Hopkins, Real 

Property, 165; Boone, Real Property, Title, Licenses. 



4 


place to another, and does not constitute the contract of carriage, 
although it may, and often does, have upon it some condition which 
enters into and forms a part of the contract (13), it may, technically 
speaking, be said that the theater ticket is merely a voucher, token 
or receipt, also adopted by the manager of the theater for convenience, 
to show that the purchaser has paid the price of admission to the 
theater and has received from the management a license to enter the 
same, and to occupy a certain seat during the performance therein 
given, and that it is evidence of the contract between the manager 
of the theater and the purchaser of the ticket for such license (14). 

In other words, a theater ticket gives to the holder the mere 
right to go into the theater for the purpose of witnessing the per¬ 
formance therein given, when, without such ticket or license, his pres¬ 
ence in such place of amusement would be unlawful, and he would be 
a trespasser. 


(13) Am. & Enc. of Law (1st Ed.), Vol 2o, p. 1074; Fetter, Carriers, 

Sec. 275; Ex parte Lorenzen, 128 Cal. 431 50 L. R. A. 55; Hale, 

Bailments and Carriers, Sec. 109. 

(14) McCrea vs. Marsh, 78 Mass. 211 71 Am. Dec. 745; Purcell vs. Daly, 

19 .41:.b. N. C. 301; Burton vs. Scherpf, 83 Mass. 133 79 Am. Dec. 

717. 




CHAPTER II. 


Revocability of the Theater Ticket. 

A theater ticket is revocable at will. This is so whether or not 
a consideration has been paid for it. 

The license which the theater ticket gives may be revoked at any 
time by the proprietor or manager of the theater. This is true whether 
the manager hsis or has not returned, or has or has not made an offer 
to return, the consideration paid for the ticket. The same right to 
revoke also exists where no consideration was originally paid. 

It seems also that the assignment or lease of the theater to other 
parties terminates the license given by a theater ticket. 

The proposition that a simple license is legally revocable at will 
is fundamental in the law of licenses, for it is a general rule that 
a license may be revoked at any time (1). This is so, though the 
license is under seal (2), or written (3), or founded upon a consid¬ 
eration (4). It may be revoked by express words to that effect (5), 
or by other acts of the licensor indicating an intention to revoke (6), 
as by a conveyance of property over which the license is to be exer¬ 
cised (7). The revocation may be by agent (8). Death of either 


Wood vs. Lcadhitter, 13 M. & W. 838: McCna vs. Marsh, 12 Gray, 211, 
71 Am. Dee. 745; Burton vs. Schcrpf, 83 Mass. 133, 79 Am. Dec. 
718; Am. rf- Eitg. Enc. of Law, Vol. 18, pp. 1140, 1143; Hopkins, 
Beal Property, 167; Boone, Beal Property, title. Licenses. 

(2) W ood r.s. Leadhiiter, 13 M. & W. 838; Wood vs. Manley, 11 Acl. & El. 34; 

WaUis vs. Harrison, 4 M. & W. 539; Jackson vs. Babcock, 4 Johns. 
(N. Y.) 413. 

(3) TUloston vs. Preston, 7 Johns. (S. Y.) 285, and cases in preceding note. 

(4) Wood vs. Leadbitter, 13 M. & W. 838; Cook vs. Herbert, 145 Mo. 462; 

Fentiman v.s. Smith, 4 East. 107; Cocker vs. Cowper, 1 C. M. & R. 418; 
Burton vs. tScherpf. 83 Mass. 133, 79 Am. Dec. 718; McCrea vs. 
Marsh, 12 Gray, 211, 71 Am. Dec. 745; HewUns vs. Shippam, 5 B. & 
C. 222; Bryan vs. Whistler, 8 B. & C. 228. 

(o' Troxell vs. Iron Co., 42 Pa. St. 513; Barksdale vs. Hairston, 81 Va. 764. 

(6) Hyde vs. Graham, 1 H. & C. 593; Nichols vs. Peck, 70 Conn. 439; Simp¬ 

son vs. Wright, 21 Til. App. 67; Johnson vs. SkiUman, 29 Minn. 95, 
43 Am. Rep. 192; Hazelton vs. Putnam, 3 Pin. 107, 54 Am. Dec. 158; 
Prince vs. Case, 10 Conn. 375, 27 Am. Dec. 675. 

(7) Coleman vs. Fester, 1 H. & N. 37; Wallis vs. Harrison, 4 M. & W. 538; 

Woodward vs. Seely, 11 Ill. 158, 50 Am. Dec. 445; Haux vs. Seat, 26 
Mo. 178, 72 Am. Dec. 202. 

(8) Kcllog vs. Bobinson, 32 Conn. 335; Wood vs. Leadbitter 



6 


party operates as a revocation (9). No formal notice of revocation is 
necessary (10). 

The doctrine of the revocability of the theater ticket has been 
uniformly maintained in the cases which treat of the ticket's legal 
status. 

In Wood vs. Leadhitter (11), the distinct point involved was the 
revocability of the ticket, it being held revocable because it gave only 
a license, and this without regard to whether or not the consideration 
was returned. After defining a license in the following words, ‘‘A 
license properly passes no interest, nor alters or transfers property 
in anything, but only makes an action lawful which, without it, had 
been unlawful,” the court says further, “a mere license is revocable.” 
Continuing, the court says: “It was suggested that in the present 
case a distinction might exist by reason of the plaintiff’s having paid 
a valuable consideration for the privilege of going on the stand. But 
this fact makes no difference. It is sufficient upon this point to say 
that in several of the cases we have cited, the alleged license was 
granted for a valuable consideration, but that was not held to make 
any difference.” 

In McCrea vs. Marsh (12), a consideration was paid for the ticket 
and its holder was refused admission. The court said: “Assuming 
that the plaintiff, by the purchase of the ticket from the defendant, 
obtained permission to enter the family circle in his own person, and 
occupy a place there during the exhibition, and yet it was only an 
executory contract. It was a license legally revocable and was revoked. 
After it was revoked, the plaintiff’s attempts to enter were unwar¬ 
ranted. According to Wood vs. Leadhitter, even if plaintiff had been 
permitted to enter the family circle, the defendant might have ordered 
him to leave it at any time during the exhibition. ’ ’ 

In Burton vs. Scherpf (13), the court said: “The sale of the 
ticket to plaintiff was a license to him to enter the hall, and to 
remain in it during the concert. But it was revoked immediately 
uj on entrance of the plaintiff into the hall. By remaining there 


';;) Film vs. ITarrisnn, 33 L. T. N. S. 796; De Haro vs. United States, 5 Wall. 

599; Jensen vs. Hunter, (Cal.) 41 Pac. R^p. 14; Lambe vs. Man- 
ninq, 171 Ill 612; Spacy vs. Evans, 152 Ind. Carter vs. Harlan, 
6 Md. 20; Hodgkins vs. Farrington, 150 Mass. 19, 15 Am. St. Rep. 
168; Putney vs. Fay, 6 N. H. 430, 25 Am. Dec. 470; Bruley vs. Gar¬ 
vin, 105 Wis. 625. 

(10) Wilson vs. n. B. Co., 41 Minn. 56. 

(11) 13 M. & W. 838. 

(12) 78 Mass. 211, 71 Am. Dec. 745. 

(IS) 83 Mass. 133, 79 Am. Dec. 717. 




7 


afterward, and refusing to depart, he became a trespasser. The 
defendant had a right to remove him. ’ ^ 

In Purcell vs. Daly (14), the court made this statement: “A 
theater ticket is simply a license, * * * and, being a license, per¬ 
sonal in its character, can be revoked’’; citing Wood vs. Leadhitter 
and Mendenhall vs. Klinck (15). The recent case of Collister vs. 
Hayman (16) is to the same effect. 

Not only does it appear that the theater ticket is revocable, but, 
following the theory of the law of licenses, it has also been held that 
the transfer of the theater revokes the license given by the ticket (17). 

In Coleman vs. Foster, the owners leased the theater to S., reserv¬ 
ing to themselves liberty of free admission to the theater. S. let 
the theater to plaintiff for two nights, subject to the terms upon 
which he held the theater. The defendant, as one of the original 
proprietors, entered the theater, and was sued for damages as a tres¬ 
passer. It was held that the right of free admission was a simple 
license, that the license was determined, and that trespass could be 
maintained against the defendant, a proprietor who entered during 
plaintiff’s tenancy. The court says: “If a man gives a license and 
then parts with the property over which the privilege is to be exercised, 
the license is gone” (18). And so in Malone vs. Harris (19), the 
owner of a theater by deed for a valuable consideration, agreed that 
certain persons who held certain securities should have free tickets 
of admission to the theater for themselves, and that they also have 
the right to issue such tickets to others. The plaintiff, as one of 
the security holders, was entitled to the benefit of the deed, but had 
lost his security. The defendant, having become lessee of the theater, 
with notice of the provision of the deed, refused to permit plaintiff 
to exercise any of the privileges as a security holder. The plaintiff 
then sued to specifically enforce the privilege of free admission, but 
judgment went for defendant. The court said: “The privilege con¬ 
ferred is personal. There was a right of free admission to the theater 
by tickets, now sought to be enforced. The right to admission is 


(14) 19 Abb. N. C. 301. 

(15) 51 N. Y. 246. 

(16) Collister vs. Eayman, et al., 75 N. Y. Supp. 1102. 

(17) Coleman vs. Foster, 1 H. & N. 37; Malone vs. Harris, 11 Irish Ch. Rep. 

33; Flight vs. Ghssop, 2 Bing. (N. C.) 125; compare Morse vs. Che¬ 
ney, 22 Fed. 380. 

(18) See Turner vs. B. 4' P- tJo., 70 N. C. 1. 

(19) 11 Irish Ch. Rep. 33. 



8 


but a license. It (the license) purports to be assignable, but it seems 
to me to be neither assignable nor transferable. The case is governed 
by Wood vs. Leadbitter.’^ 

A pass to a theater, given gratuitously, is likewise a mere revoc¬ 
able license (20). The fact that the right of entrance is by pass 
does not alter the relation of the manager to the ticket holder, nor 
of the latter to the former. The same principles of law prevail as 
where the right to enter the theater is given by ticket purchased in 
due course, or by pass given for a consideration. 

The general doctrine of the revocability of the theater ticket is 
subject to the provisions of affirmative State legislation on theaters 
and places of amusements. The regulation of theaters is within the 
police power of the State, and where the Legislature has passed statutes 
regulating admissions to theaters, these statutes must necessarily pre¬ 
vail and may make a theater ticket irrevocable (21). 

The State of California in 1893 passed an anomalous statute 
which materially affects the status of the theater ticket in that 
State (22). 

The statute provides that ‘‘it shall be unlawful for any cor¬ 
poration, person, or association, or the proprietor, lessee, or the agent 
of either, of any opera house, theater, etc., or other place of public 
amusement or entertainment, to refuse admittance to any person over 
the age of twenty-one years, who presents a ticket of admission 
acquired by purchase, and who demands admission to such place; 
provided, that any person under the influence of liquor, or who is 
guilty of boisterous conduct, or any person of lewd or immoral char¬ 
acter, may be excluded from such place of amusement. ’ * Any person 
who is refused admission to any place of amusement contrary to the 
provisions of this act is entitled to recover from the proprietor, lessee, 
or their agents, or from any person, association or corporation, or the 
directors thereof, his actual damages and one hundred dollars in 
addition thereto. 

This statute has been held constitutional (23). The purpose 
of the statute is clearly to deprive the theater ticket, except in the 
cases mentioned in the statute, of the quality of revocability which 


(20) Flight vs. Glossnp, 2 Bing. (N. C.) 125; Coleman vs. Foster, 1 H. & 

N. 37; Malone vs. Harris, 11 Irish Ch. Eep. 33; Wood vs. Leadhitter, 
13 M. & W. 838; Turner vs, E. # D. E. Co., 70 N. C. 1; N. Y. Co. 
vs. Ketchum, 27 Conn. 170. 

(21) Greenberg vs. Western Turf Assn., 140 Cal. 357; 75 Pac. 1050. 

(22) Stat. 1893, p. 220. 

(23) Greenberg vs. Western Turf Assn., 140 Cal. 357, 73 Pac. 1050. 




9 


attaches to it under the general doctrines of the law, and such was 
the decision of the court. As the statute makes it unlawful to refuse 
admittance to a person who presents a ticket ‘ ‘ acquired by purchase, * ’ 
and, as a ticket may be acquired by purchase from the management 
of the theater as well as from any other person, the word “purchase’’ 
being used in its ordinary and popular acceptation of the transmission 
of property from one person to another by their voluntary act and 
agreement, founded upon a consideration, it is for the courts to 
determine whether this statute also affects the quality of non-assign¬ 
ability which attaches in the law to the theater ticket as a license. 

In the statute just referred to, it is provided that drunken, 
boisterous and immoral people may be excluded from the theater. 
This would be true in the absence of statute, for the theater is a 
private business enterprise whose proprietor may make such rules 
as he chooses for its management, and in the absence of statute, may 
admit or exclude whom he desires, except that where there is a civil 
rights law there must be no discrimination based on color or race. 
Otherwise, the manager may make such rules as he deems proper, and 
persons may be excluded who fail to observe them, or who do not 
come within their provision. Objectionable persons or characters may 
always be excluded from a theater. Spectators in the theater whose 
conduct is disorderly or offensive, or who persistently violate the 
rules of the house, or interfere with the comfort of other patrons, 
may be ejected after reasonable notice to depart, by the use of no 
more than necessary force (24). In such cases the safer course is to 
refund the purchase price of the ticket. 


(24) Hutchins vs. Durham, 118 N. C. 457. 





CHAPTER III. 


Non-Assignability op the Theater Ticket. 

A theater ticket is neither assignable nor transferable. 

Any attempt to assign the license given by the ticket will ter¬ 
minate the holder’s right thereto. 

The proprietor or manager of the theater may annex to the ticket 
of admission issued by him the. condition that it is not transferable, 
and that, if transferred, it shall be worthless. 

It is a general principle of the law of licenses that a license, 
being strictly confined to the original parties thereto, and being purely 
a matter of personal privilege, is not assignable, and can operate 
neither for nor against a third person (1). It is incapable of being 
assigned or transferred by the person to whom it is granted (2). 
It is so much a matter of personal trust and confidence that it does 
not extend to any one but the licensee (3). It is likewise personal 
as to the grantor (4). And it has been held that an attempt to assign 
the license will terminate the licensee’s right thereto (5). 

From the analogies of the law of licenses—a theater ticket being 
uniformly held to be a license—the conclusion is drawn that a theater 
ticket is non-assignable. As regards its revocability at will, the courts 
have followed the law of licenses, and it has also been held, following 
the general principles of the subject, that the transfer or conveyance 
of the theater or the place upon or in which the license is to be 
exercised, operates to revoke the license already given by the ticket. 
And it may be conceived that the courts, when the distinct point of 
non-assignability of the ticket, unencumbered by specific restrictions 
on the ticket, is presented, will hold, as they have done in construing 


(1) Am. Eng. Enc. of Lavj, Vol. IS, p. 1140; Hopkins, Eeal Froperty, 165, 

166; Boone, Eeal Property, title. Licenses. 

(2) Citations in previous note. 

(3) Euggles vs. Lesure, 24 Pick. 190; Emerson vs. Fisk, 6 Me. 200, 19 Am. 

Dec. 206; Coleman vs. Foster, 37 Eng, L. & Eq. 489; Harris vs. Gil¬ 
lingham, 6 N. H. 9, 23 Am. Dec. 700; Bark vs. Johnston, 55 Pa. St. 
164, 93 Am. Dec. 732; Pearson vs. Hartman, 100 Pa. St. 84. 

(4) Yeakel vs. Jacob, 33 Pa. St. 376; Eiddlee vs. Brown, 20 Ala. 412, 56 Am. 

Dec. 202. 

(5) Sterling vs. Worden, 51 N. H. 217, 12 Am. Eep. 80; Jackson vs. Babcock, 

4 Johns. (N. Y.) 418; Dark vs. Johnston, 55 Pa. St. 164, 93 Am. 
Dec. 732. 



11 


the rights of a licensee in other cases, that the holder of a ticket 
cannot, by an assignment or transfer of the ticket, grant to another 
his right to enter the theater. For a theater ticket is a license, and 
a license is personal to the licensee, and is in its inherent nature non- 
assignable, and therefore the theater ticket is non-assignable. Besides, 
it has been held, an attempted assignment by the licensee of the license 
will terminate his right thereto (6). 

In Coleman vs. Foster (7), where there was a liberty of free 
admission, and the theater was leased to a third party, subject to 
the conditions of the demise, the court said: “In order to be an 
excuse for a trespass, the alleged liberty of admission must be a license, 
or it is nothing. It conveys no interest. If a man gives a license, 
and then parts with the property over which the privilege is to be 
exercised, the license is gone. A license is a thing so evanescent that 
it cannot be transferred.” And in Malone vs. Harris (8), where the 
defendant became the lessee of the theater, with notice of the provisions 
of the deed, whereby certain holders of securities should have free 
tickets of admission to the theater, the court, in speaking of the trans¬ 
ferability of the license reserved, said: 

“There was a right of free admission by tickets. * * * The 

right of admission is but a license to enter upon the premises of the 
licensor. There is not a grant of an interest in the subject of the 
license. If this be a license to enter upon the premises in which it 
grants nothing by way of interest, but simply a license for pleasure, 
there is nothing to attach an equity to the premises in the occupation 
of the respondents, yit purports to be assignable, but it seems to me 
to be neither assignable nor transferable. In Shepherd’s Touchstone 
(Vol 1, p. 230) it is said: ‘Licenses and authorities are grantable 
at first for lives of the parties and for years, but the grantees of them 
cannot assign them over.’ ” 

That a theater ticket is not salable or transferable by the pur¬ 
chaser was distinctly held in the recent case of Collister vs. Hayman 
et al. (9), which arose out of the efforts of Albert Hayman to destroy 
speculation in tickets of admission to the Knickerbocker Theater in 
New York City. 


(6) sterling vs. Warden, 51 N. H. 217, 12 Am. Eep. 80; Jackson vs. Babcock, 

4 Johns. (N. Y.) 418; Dark vs. Johnston, 55 Pa. St. 164, 93 Am. 
Pec. 732. 

(7) 1 H. & N. 37. 

(8) 11 Irish Ch. Rep. 33, and see also Flight vs. Glossop. 2 Bing. (N. C.) 125. 

(9) 75 N. Y. Snpp. 1102; see Greenberg vs. Western Turf Assn., 73 Pac. 1050. 




12 


The plaintiff, describing himself as a broker or speculator in 
theater tickets under a license granted by the municipal authorities 
of New York City, sued the defendants as the proprietors and man¬ 
agers of the theater, to restrain them from interfering with him in 
the prosecution of his business of selling upon the sidewalk, outside 
of the prohibited limits, tickets of admission to the Knickerbocker 
Theater, to require them to remove a certain sign from the entrance to 
the theater, and to compel them to desist from employing or allowing 
persons to interfere in the manner indicated, or in any other manner, 
with the plaintiff, and also to enjoin them from refusing to accept 
tickets from persons who purchased them on the street from specu¬ 
lators. 

It appeared that the defendants had placed upon the theater 
building a conspicuous sign, warning the public against buying tickets 
from plaintiff, and declaring that such tickets would not be recognized 
or received by them, and that the purchasers thereof would not be 
permitted to enter the theater upon such tickets, and also that defend¬ 
ants had employed agents or servants who approached persons intend¬ 
ing to purchase tickets from plaintiff and who warned such persons 
against purchasing, and declared that if such purchases were made 
the tickets would not be received at the theater. 

The order denying the injunction prayed for was affirmed upon 
appeal, the court in its opinion saying: “That plaintiff is engaged 
in a lawful business is not material to the discussion. He has pur¬ 
chased a privilege from the city to buy and sell theater tickets, but 
that privilege relates only to the right to buy and sell that which 
is purchasable and vendible. The privilege accorded by the city 
authorities cannot change the inherent nature of a theater ticket. 
If that ticket is something that can be bought and sold by any one, 
then there would be a good ground to support plaintiff’s contention. 
The weight of authority is to the effect that a theater ticket is merely 
a license given by the proprietor of the place of entertainment to 
the purchaser of that ticket to enter upon the premises of such 
proprietor to witness a performance, and that in its nature is a 
revocable license. If the theater ticket is a mere personal license, 
it is not salable or transferable. ’ ’ 

The conditions frequently printed upon theater tickets, declaring 
their character as a license, the control which the manager intends 
to retain over them, restricting their validity to the persons to whom 
sold, and providing for their non-transferability, have been sustained. 
This proceeds upon the theory of the contract of the parties. 

In analogous cases of the sale of non-transferable transportation 
tickets, it IS held that a carrier may restrict the use of the ticket 


13 


to the original purchaser. The words “not transferable,” or words 
of like import, printed on the ticket, will have that effect, and a 
third party can acquire no rights by virtue of such a ticket (10). The 
purchaser takes the ticket with notice of the limitations and conditions 
printed thereon, and is bound thereby (11). Such a non-transferable 
ticket gives no rights to the transferee, and the manager maj'- lawfully 
refuse to honor it (12). The condition is valid, and the transferee 
cannot use the ticket. 

Upon this point in Purcell vs. Daly the court said: 

“It is unnecessary to discuss the question whether a person to 
whom tickets of admission to a theater are issued has the right to 
transfer them to a third party, as under the peculiar form of ticket 
in the present case the point is not at issue. The ticket can only be 
received as evidence of the oral contract made between defendant A 
or S. The contract is in effect as though A or S had applied for 
admission to Daly’s theater, and Daly had said, “I will sell you 
the right of admission for two persons (for yourself and another) 
to my theater, but you must not transfer the ticket to anybody else, 
for I will not receive the same if it is so transferred.’ This was 
the gist of the contract between the parties and, as admission was 
not refused either to A or S to witness the performance on the 
night for which the tickets were issued, no breach of contract on part 
of the defendant occurred. There was no agreement on part of the 
defendant to refund the money in case the tickets so issued were not 
used, and hence, under any aspect of the case, the only liability on 
part of the defendant would have resulted from his refusing admission 
to the theater to the person to whom the tickets were issued, and 
as this was not done, there should be judgment for defendant, dis¬ 
missing the complaint” (13). 


(10) Am. 4' Enc. of Law, (1 St. Ed.) Vol. 25, p. 1091. 

(11) Cohurn vs. Morgan^s Co., 29 So. 882; Boylan vs. JI. S. B. Co., 132 U. S. 

50; N. Y. Rif. Co. vs. Bennett, 50 Fed. 496; Drummond vs. S. P. Co., 
25 Pac. 733/ 7 Utah, 118; Post vs. R. R. Co., 14 Neb. 110, 15 N. W. 
110; Comer vs. Foley, 25 S. E. 671; RaJiilly vs. R. Co., 68 N. W. 853; 
Friedenrich vs. R. ('o., 53 Md. 201; Way vs. Ry. Co., 64 la. 48, 19 
N. W. 828; Wallcer vs. R. R. Co., 15 Mo. App. 333; Pittsburg Ry. 
Co. vs. Russ^ 57 Fed. 822; Cody vs. R. R. Co., 4 Sawy. 114; Fetter, 
Carriers, Sec. 282 et seq.: Bale, Bailments ^ Carriers, Sec. 109. 

(12) Purcell vs. Daly. 19 Abb. Cas. (N. S.) 301; Collister vs. Dayman, 75 

N. Y. S. 1102. 

(13) See also Collister vs. Dayman, 75 N. Y. S. 1105. 





CHAPTER IV. 



Rights After Revocation. 

After the revocation of the license implied in the sale of the 
theater ticket, necessary force may be used, if required, to render 
effective the revocation, without subjecting the proprietor of the 
theater to tort liability. 

The holder of the ticket may be forcibly prevented, if necessary, 
from entering the theater, or, if he has already entered the theater, 
he may be ejected therefrom, after reasonable notice to leave. 

In making effective the revocation, or in removing a person from 
the theater for any other cause, the proprietor of the theater, and 
his servants, are civilly responsible for any undue, excessive, willful 
or malicious violence or injury inflicted upon spectator (1). 

In Wood vs. Leadhitter (2) the action was for assault and false 
imprisonment. The plaintiff having beeen requested to leave the 
enclosure, and refusing to go, was forcibly ejected, no unnecessary 
violence being used. The court held that due notice having been 
given, and a reasonable time having elapsed, the force used was proper. 
The judgment was for defendant. In Burton vs. Scherpf (3), the 
action was for assault and battery. The trial court ruled that the 
plaintiff could recover in that form of action, and verdict was rendered 
for the plaintiff. The case was reversed on appeal to the Supreme 
Court, the Judge saying: “By remaining there afterwards, and 
refusing to depart upon request, he (plaintiff) became a trespasser; 
and the defendant had a right to remove him by the use of such 
degree of force as his resistance should render necessary for that 
purpose. It is not alleged that in the exercise of this right the 
force used was at all excessive, or more than was requisite to effect 
his removal in a reasonable manner from the premises. * * * Upon 
his (plaintiff’s) refusal to leave the hall to which his ticket gave 
him admittance, the defendant had the lawful right to remove him. 
For such removal an action of trespass cannot be maintained.” 


(1) Hale, Bailments if Carriers, p. o36; Fetter, Carriers, Sec. 334; Diclson 

vs. Waldron, 135 Tnd. 507, 41 Am. St. Ecp. 440 24 L. E. A. 483 34 
N. E. 506; Brew vs. Peer, 93 Pa. St. 234; Fowler vs. Holmes. 3 
N. Y. S. 816. 

(2) 13 M. & W. 838. 

(3) 83 Mass. 133, 79 Am. Dec. 717. 





15 


In McCrea vs. Marsh (4) the action was in tort for forcibly 
excluding plaintiff from a theater after he had bought and offered 
at the door one of the usual “dress circle’’ tickets. Verdict for 
defendant. The court said: “It was correctly ruled at the trial 
that the plaintiff could not maintain this action, and that his remedy, 
if any, was by an action of contract. * * * After it (the ticket) 
was revoked, the plaintiff’s attempts to enter were unwarranted, and 
the defendant rightfully used the force necessary to prevent his 
entry” (5). 

For the revocation of the license given by the sale of the ticket, 
the ticket holder may sue the proprietor in an action for breach of 
contract (6). 

The measure of damage would be the price paid for the ticket, and 
all other legal damage which the ticket holder has sustained by the 
breach of the contract implied in the sale and delivery of the ticket. 

It was said by the court in the case of Wood vs. Veadhitter, after 
referring to the fact of a consideration having been paid for the ticket: 

‘ ‘ But that fact makes no difference; whether it may give the plaintiff 
a right of action against those from whom he purchased the ticket, 
or those who authorized its being issued and sold to him, is a point 
not necessary to be discussed; any such action would be founded on 
a breach of contract, and would not be the result of his having acquired 
by the ticket a right of going on the stand in spite of the owner of the 
soil.” 

It was held in Burton vs. Scherpf that for the revocation of a 
ticket of admission to a concert, the only remedy the holder of the 
ticket had was to sue for a breach of contract; and in McCrea vs. 
Marsh it was likewise held that for refusal to admit a ticket holder 
to a theater his only remedy was an action on the contract to recover 
the money paid for the ticket and damages sustained by the breach 
of the contract implied by the sale and delivery of the ticket. 

Judge Monell, in delivering the opinion in Purcell vs. Daly makes 
u'^e of the following language upon the subject of damages for revoca¬ 
tion of the ticket: 

“If tickets are sold to a person, the proprietor may still refuse 
admission, in which case the proprietor would be compelled to refund 


(4) McCrea vs. Marsh, 12 Gray, 211. 

(5) See Greenherg vs. Western Turf Assn., 140 Cal, 357; 73 Pac. 1050. In 

this case, which arose tinder an express statute of the state, it was 
held that it was within the province of the Legislature under the 
police power, to destroy the revocability of the ticket of admission 
to a place of amusement. 

(6) Kerrison vs. Smith, 2 Q. B. 445. 



16 


only the price paid for the tickets of admission, together with such 
other expense as the party might have been put to, but which expense 
must be directly connected with the issuing of the ticket of admis¬ 
sion. For he could not accept money for the right of admission to 
his theater, and then, upon refusing admission, seek to retain posses¬ 
sion of the price paid for the privilege.’' 

The implication from the language of the court in this case is 
that the damages sustained from the revocation of the ticket would 
be confined within a narrow compass, and must be “directly con¬ 
nected with the issuing of the ticket of admission.” This, of course, 
would exclude the idea of indirect or remote damage, for it is a 
general principle of the law that only those damages which are the 
proximate and direct consequence of the act complained of are recov¬ 
erable (7). 

It has been held that the holder of a ticket of admission cannot 
specifically enforce the right of admission evidenced by the same (8), 
nor can the manager be enjoined from refusing to accept tickets sold 
by him (9). This would necessarily follow from the character of 
the theater ticket as a mere revocable license. 

Miscellaneous 

The manager of a theater has the right to sell reserved seats (10), 
but he is not bound to sell any chosen seat to the person who first 
presents himself and tenders the price, or to any particular per¬ 
son (11), nor may he be required to return the purchase price of 
a ticket which has been once sold (12). It is held that a person who 
visits a theater or a place of public amusement or entertainment is 
entitled to a seat, his right thereto depending on the nature of his 
ticket. If he has purchased a reserved seat, he is entitled to the 
seat corresponding to the coupon attached to his ticket. If he has 
not purchased such a seat, he may take any seat unoccupied which 


(7) In Greenberg vs. Western Turf Assn., 140 Cal. 357, 73 Pac. 1050, there is 

a full and lucid discussion of the subject of damages recoverable for 
revocation of a theater ticket. 

(8) Malone vs. Harris, 11 Irish Ch. Kep. 33; Scott vs. Howard,.Q App. Cases, 

295, House of Lords, 1881. 

(9) ColUster vs. Hayman, 75 N. Y. S. 1102. 

(10) Hist, of Columbia vs. Saville, 1 McArthur, 581. 29 Am. Rep. 616. 

(11) Pearce vs. Spaulding, 12 Mo. App. 141. 

(12) Wandall, Law of the Theater, p. 249; Purcell vs. Daly, 19 Abb. Cas. 

(N. S.) 301. 



17 


has not been previously sold to another (13). It is held also that 
the purchaser of standing room is not entitled to a seat, but in such 
case he should be informed that standing room only is being sold 
(14). It has also been held that a person has no right to go into 
that part of the theater, admission to which he is not entitled to 
under his ticket. He has no right to go into a reserved seat or a 
private box, and if he does so he may be ejected, using no more 
than necessary force. His proper course, if there is not room, is 
to go out of the theater and demand the return of his money (15). 
The theater ticket being a non-transferable and non-assignable license 
(16), a return check given to one lawfully attending a theater after 
the entertainment has begun is likewise non-transferable, and if as¬ 
signed by the person to whom it is given it may be revoked at the 
pleasure of the manager. Where tickets have by mistake been sold 
for the wrong night, and the purchaser has been ejected from the 
seats occupied, no violence or force being used, the manager is not 
liable for exemplary or punitive damages for the mistake of his 
employees (17). In another case it was held that where one has 
purchased a general admission to the theater without knowledge that 
an additional price was charged for seats in a certain part of the 
theater, he may occupy one of the latter seats without payment of 
the extra charge until informed by the management that an extra 
price was charged therefor, and demanded of him, and that he should 
be allowed to remain in the theater, in the absence of improper conduct 
on his part, although it v/as necessary to remove him from such seat (18). 

While it is customary for the management of many theaters 
to issue free tickets of admission, yet this privilege may be limited 
by contract, and where such practice is carried on to such an extent 
as to injure the interests of the stockholders or other persons inter¬ 
ested in the theater, it may be restrained by injunction, or an account¬ 
ing enforced (19). The right of free admission cannot be specifically 
enforced (20). 

Forgery may be committed in printing spurious tickets, for this 
crime may be consummated by printing or stamping as well as by 
writing with the pen (21). 

(13) Com. vs. Powell, 10 Phila. 180. 

(14) Vanderberg vs. Harris, 5 Gibson’s Law Notes t 

(15) Lewis vs. Arnold, 4 C. & P. 354. 

(16) Collister vs. Eayman, 75 N. Y. S. 1102; 12 Cent. Law J. 393. 

(17) AfacGowan vs. Duf, 12 N. Y. St. Eep. 680. 

(18) McGovery vs. Staples, 7 Alb. L. J. 219. 

(19) Baker^s Appeal, 108 Pa. St. 510, 56 Am. Rep. 231; 'Arons vs. Lewis, 3 

Viet. 79. 

(20) Malone vs. Harris, 11 Ir. Ch. Rep. 33. 

(21) Benson vs. McMahon, 127 U. S. 457. 




CHAPTER V. 


Audience Right to Criticise. 

The right of an audience to manifest their approbation or censure, 
or to indicate their feelings regarding the play and the players, is 
confined within a narrow compass. The theater is a place of public 
amusement, to which large numbers of people resort for pleasure 
and amusement. The spectator is a licensee, and it is conceived 
that he is under the same duty to refrain from a breach or disturb¬ 
ance of the peace and to observe reasonable regulations imposed for 
due order and propriety as would be required of him elsewhere in 
public places. 

The audience in a public theater have a right to express their 
feelings, excited at the moment by the performance, and in this 
manner to applaud or hiss any piece which is represented, or any 
performer who exhibits himself on the stage. They may express their 
free and unbiased opinion of the merits of the play or the performers, 
in a reasonable manner. But if a number of persons attend a theater 
with the predetermined purpose of hissing an actor, or the play, they 
are guilty of conspiracy, and if the disturbance is so great as to 
interrupt the piece, and to render the actors entirely inaudible, though 
without offering personal violence to any individual or doing any 
injury to the house, they are in point of law guilty of riot. 

The leading case upon the subject of the rights of the audience 
to express their opinions of the play and the players is that of 
Clifford vs. Brandon (1), wherein the Chief Justice said in stating 
the law to the jury: 

‘^As to the existence of a riot in the house, no doubt can be enter¬ 
tained. It appears that for a great many nights there were riots 
there of such a nature as to go to put an end altogether to dramatic 
representation. I cannot tell upon what grounds many people con¬ 
ceive they have the right, at a theater, to make such a prodigious 
noise as to prevent others from hearing what is going forward on 
the stage. ♦ ♦ * These premeditated and systematic tumults 

have beeni compared to that noise which has been at all times 
witnessed at theaters in the immediate expression of the feelings of 
audiences upon a new piece, or the merits or defects of a particular 
performer. The cases, however, are widely different. The audience 
have certainly a right to express by applause or hisses the sensations 


(1) Clifford vs. Brandon, 2 Campbell, 358. 



19 


which naturally present themselves at the moment, and nobody has 
ever hindered, or would ever question, the exercise of that right. 
But if any body of men were to go to the theater with the settled 
intention of hissing an actor, or even of damning a piece, there can 
be no doubt that such a deliberate and preconcerted scheme would 
amount to a conspiracy and that the persons concerned in it might 
be brought to punishment. If people endeavor to effect an object 
by tumult and disorder, they are guilty of riot. It is not necessary 
to constitute this crime that personal violence should have been 
committed, or that a house should have been pulled to pieces. I 
am clearly of the opinion that the scenes which have been described 
amount to a riot. How can it be said there was no terror? Would 
any of the jury allow their wives and daughters to go to the theater 
during these disturbances? Must not those who entertain a different 
opinion upon the matters in dispute, and are friendly to the managers, 
expect to meet violent ill-treatment? The jury will consider, then, 
whether Mr. Clifford was an instigator of the riot, which one of his 
witnesses has represented as resembling a quarrel among a thousand 
sailors. The law is that if any person encourages or promotes or 
takes part in riots, whether by words, signs or gestures, or by wearing 
the badge or ensign of the rioters, he himself is considered a rioter, 
and he is liable to be arrested for a breach of the peace. * ’ 

In a note on this case the reporter adds: 

“Macklin, the famous comedian, indicted several persons for 
a conspiracy to ruin him in his profession. They were tried before 
Lord Mansfield, and it being proved that they had entered into a 
plan to hiss him as often as he appeared on the stage, they were 
found guilty under his Lordship ^s direction, but the prosecutor de¬ 
clined calling upon them to receive the judgment of the court.” 

In the case of Gregory vs. Duke of Brunswick (2), the action was 
for conspiracy to prevent the plaintiff from performing in “Hamlet,” 
and in aid of the conspiracy hiring 200 persons to hiss and hoot, by 
which he was prevented from performing. Tindal, C. J., said: 

“The law on this subject lies in a narrow compass. There is 
no doubt that the public who go to a theater have the right to 
express their free and unbiased opinions of the merits of the per¬ 
formers who appear upon the stage. * * * At the same time, 

parties have no right to go to a theater by a preconcerted plan, to 
make such a noise that an actor, without any judgment being formed 
on his performance, should be driven from the stage by such a scheme, 
probably concocted for an unworthy purpose.” 


(2) 6 M. & G. 205. 



20 


And in Bex vs. Forbes (3) it is said, regarding the right of the 
audience: 

“They may cry down a play or other performance, which they 
dislike, or they may hiss or hoot the actors who depend upon their 
approbation or caprice. Even that privilege is confined within its 
limits. They must not break the peace, or act in such a manner 
as has a tendency to excite terror or disturbance. Their censure or 
approbation, although it may be noisy, must not be riotous. That 
censure or approbation must be the expression of the feelings of the 
moment, for, if it be premeditated by a number of persons con¬ 
federated beforehand to cry down even a performance of an actor, 
it becomes criminal.” 

In the very interesting case of People vs. Judson (4), which 
illustrated the strong enmity existing between Macready, the well- 
known and eminent English tragedian, and Edwin Forrest, the equally 
well-known and eminent American tragedian, in consequence of which 
an effort was made by some of Forrest’s partisans to prevent Mac- 
ready from giving a performance at the Astor Place Opera House 
in New York City in May, 1849, upon the occasion of the first night 
of his reappearance there, the tumult in and around the theater 
was great, feeling running high, and many were injured. Ten persons 
were indicted for engaging in a riot and convicted. On the trial the 
court said in charging the jury: 

“That the privilege of an audience at a theater to give spontaneous 
expression to the feelings of approbation or disapprobation which 
the representation inspires is of immemorial usage, but it does not 
imply the right to create a tumult in the theater, to throw missiles 
at the actor, to destroy property, or the right of a few to give or 
continue the expression of their disapprobation in such a manner 
as to prevent the majority present from witnessing the performance 
if they desire to do so. Nor have a number of persons the right to 
combine together and go to the theater to prevent a dramatic repre¬ 
sentation by noise or tumult, or to hiss a particular actor who may 
be obnoxious to them, or prevent his performing. ’ ’ 


(3) 1 Craw. & D. 157. 

(4) 11 Daly (N. Y.) 1. 






CHAPTER VI. 


Liability of Managers. 

The proprietor of a theater is civilly liable for the wrong or 
injury of his employees toward his guests or patrons, when such acts 
are performed by the employees in the line of their duties (1). 

The employee whose duty it is to preserve order in and about 
the theater, and to remove offensive patrons therefrom, is necessarily 
the judge as to whether the conduct of the patron is so offensive 
and disorderly as to require his removal. 

If such employee, however, acting in the line of his duty, makes 
a mistake and wrongfully attacks and injures an inoffensive patron, 
the proprietor is responsible for his acts. 

The fact that such employee is a special policeman will not 
relieve the proprietor from liability. 

The proprietor is also responsible for the acts of his agents in 
refusing admission to or in excluding from the theater persons who 
have obtained or who apply for admission to the theater (2). 

In Fowler vs. Holmes (3) the action was brought by the plaintiff 
against defendant for an assault and battery committed on plaintiff 
by one alleged to be the servant of defendant. Defendant was the 
proprietor of a theater and had employed a traveling theatrical com¬ 
pany to play for him in the theater. A member of the company 
was collecting tickets for the proprietor and attending to those who 
desired to exchange seat tickets for other seats, and while so engaged 
he was approached by plaintiff with the request to exchange his tickets 
for others. He ordered plaintiff to get in line and take his turn. 
His refusal to do so resulted in some words and thereupon an assault 
was committed by him upon plaintiff. A verdict for plaintiff was 
affirmed upon appeal, the court holding that there was sufficient evi¬ 
dence on which to submit to the jury the question as to whether 
the employee was defendant’s servant, engaged in his business, and 
the assault was committed while acting within the scope of his em¬ 
ployment. 


(1) Fowler vs. Holmes, 3 N. Y. S. 816; Dickson vs. Waldron, 135 Ind. 509; 

Drew vs. Peer, 93 Pa. St. 234; Joseph vs. Bidwell, 28 La. Ann. 382, 
26 Am. Rep. 103; and see Fire Department of N. Y. vs. Stetson, 6 
N. Y. St. Rep. 255. 

(2) Joseph vs. Bidwell, 28 La. Ann. 383, 26 Am. Rep. 103. 

(3) 3 N. Y. S. 816. 




22 


The leading authority upon this branch of the subject is Dickson 
vs. Waldron (4). Dickson and Talbott were the lessees and managers 
of the Park Theater in Indianapolis. Kiley was the head janitor 
of the theater and was also a ticket taker. At the request of Dickson 
and Talbott he was granted special police powers, such powers to 
be exercised at the Park Theater, and he was paid by Dickson. Kiley 
was not relieved of any of his duties in the theater by his appointment 
as a special policeman, and his appointment was made at the sug¬ 
gestion of the chief police officer to assist him in preserving order 
in the theater, and in the latter’s absence Kiley acted for him. 

One evening Waldron with some friends desired to attend the 
theater and they went to the ticket office and Waldron called for 
a ten-cent ticket, tendering Gordon, the ticket seller, a silver dollar 
and receiving in return a ticket and seventy cents in change. There 
was a wordy altercation as to the tickets and the change, Waldron 
refusing to leave until the difficulty as to the change was adjusted. 
Gordon then grabbed Waldron’s money and ticket from him, slapped 
him in the face and applied opprobrious epithets to him, and called 
out “Police!” or “Johnny, arrest that man for a vag.” Kiley then 
stepped up to Waldron and knocked him down and beat him severely 
about the head, arms and shoulders. Kiley withdrew for a time, 
somebody having interfered, and Gordon came out of the ticket office, 
grabbed Waldron and began pounding him in the face with his fist, 
knocked him down and kicked him several times. Kiley then arrested 
Waldron and sent him to the police station. The testimony of Kiley 
and Gordon showed that their treatment of Waldron was most brutal, 
and agreed with that of Waldron and his witnesses in the main 
facts. It was also in evidence that Kiley had hit Waldron with 
a mace and that Gordon ordered Kiley to arrest Waldron. The 
duties of Kiley, as testified to, were to take tickets at the door, super¬ 
vise the cleaning of the house, and assist the chief police officer in 
making arrests and in preserving order. 

Waldron brought suit against Dickson and Talbott for assault 
and battery and recovered a substantial judgment against them. The 
jury found that Kiley, while in defendant’s theater, struck Waldron 
several blows upon the head with a mace, thereby inflicting severe 
wounds upon him, and that such blows resulted in his losing the 
hearing of his left ear, and otherwise disabling him, and causing 
him to lose his position as a freight conductor; that Waldron had 


(4) Dickson vs. Waldron, 135 Ind. 507, 41 Am. St. Eep. 440, 24 L. E. A. 483. 
34 N. E. 506, affirmed on rehearing . 35 N. E. 1. This case has been 
made the text of an article in the American Law Register for June. 
1894, 1 Am. Law Reg. (N. S.) 448. 



23 


violated no law or ordinance, and that Kiley had no warrant for 
Waldron’s arrest, and that he was an employee of Dickson & Talbott, 
when assaulting Waldron, was acting as the servant and employee 
of Dickson & Talbott, engaged in their business, and acting within 
the general scope of the duties of his employment. The verdict for 
Waldron was sustained upon appeal. 

In the opinion the court says: *‘The main question in this case, 
and perhaps the only one that need be decided, is. Whether appellants 
are liable to appellee for the injuries inflicted upon him by their 
employeee, John M. Kiley. 

“The treatment due from a carrier to his passenger, from an 
innkeeper to his guest, and from a theatrical manager to his patron, 
while perhaps differing in degree, is similar in kind. 

“The duty of a railroad company to its passengers is well ex¬ 
pressed in Indianapolis Union By. Co. vs. Cooper, 6 Ind. App., 202. 
This was a case where a passenger, having purchased his ticket, was 
in the company’s station on his way to the train, when he was assaulted 
by the ‘gateman.’ The court said: ‘It seems to us reasonably clear 
that the servant was, at the time of doing the acts complained of, 
on duty for his master, and at or near his proper place, and that 
the assault was committed on appellee while he was on the master’s 
grounds and under the charge of the master’s servants, and entitled 
to their protection rather than their abuse. It (the railroad company) 
owed him an affirmative duty to protect him from the violence and 
insults of its own servants at the station. It is well settled that one 
who has purchased a ticket and is passing, at the proper time from the 
depot to the train, is a passenger. One of the prime duties resting 
upon a railroad company is to protect its passengers from assault 
and injuries by its servants, nor does the question of its liability for 
a breach of this duty depend upon whether or not the servant, in the 
performance of the act, is within the scope of his employment.’ 

“A corporation is liable to make compensation for any tort com¬ 
mitted by an agent in the course of his employment, although the act 
is done wantonly and recklessly, or against the express orders of the 
principal. 

“It is in general no excuse to the employer that an injury which 
has occurred was caused by disobedience of his orders, whether they 
be express or implied. He assumes the risks of such disobedience when 
he puts the servant into his business. 

“In Higgins vs. Waiervliet Turnpike Co., 46 N. Y. 23, 7 Am. Rep. 
293, it was claimed that no authority had been given to turn out an 
inoffensive passenger, and that therefore there was no liability for 
the servant’s acts, but the court held that the authority to remove 


24 


an offensive passenger necessarily carried authority to determine 
whether any passenger was offensive or not. So here, the matter 
was about the master’s business, and the servant of necessity must be 
the judge as to whether the conduct of appellee was such as to require 
his removal, and if a mistake was made, and an inoffensive patron of 
the theater was unjustly attacked and injured, the master must re¬ 
spond. 

“It is not convenient for the master to conduct personally the 
business of keeping order in his theater, and he puts his guard in his 
place; therefore, if the guard forms a wrong judgment, the master is 
responsible. 

“Indeed, no rule is better established than that a principal 
is responsible for the acts of his agent performed within the line of his 
duty, whether the particular act was or was not directly authorized 
or whether or not it was lawful. 

“But common carriers, merchants, managers of theaters and 
others who invite the public to become their patrons and guests, and 
thus submit their personal safety and comfort to their keeping, owe a 
more special duty to those who may accept such invitation. Such 
patrons and guests have a right to ask that they shall be protected 
from injury when present on such invitation, and particularly that 
they shall not suffer wrong from the agents and servants of those 
who have invited them. 

“It is said Kiley was a policeman, and therefore appellants are 
not responsible for his attack upon Waldron. Whether at the time 
of the injuries complained of, Kiley was acting as a policeman, or as 
agent of appellants, must depend upon the acts done by him. Be¬ 
cause he was a police officer, it does not follow that all his acts were 
those of a policeman, and because he was an agent of appellant, that 
all his acts were those of such agent. Even if he were a regular patrol¬ 
man called in off the street by appellants, or their agents, to aid in 
enforcing the regulations of the theater, he would, for such purpose, 
be only the agent of appellants, and for his conduct as such agent, 
within the scope of his employment, appellants would be responsible. 
If, however, after entering the theater, he should discover appellee 
in the act of violating a criminal law or a penal ordinance, and should 
proceed to arrest him for it, such act of arrest would be that of a 
police officer. And if such arrest were made upon the ofdcer’s own 
motion, without direction, expressed or implied, on the part of 
appellants, then appellants would not be responsible. 

“ Kiley’s acts as a policeman were committed after he had as¬ 
saulted and beaten Waldron. It could not be seriously contended that 
Kiley could do no wrong as janitor and doorkeeper, but that every 


wrong done by him should be charged to his official character. This 
would enable a proprietor to have all his employees commissioned as 
police officers, and thus escape liability for their misconduct to their 
patrons. 

*‘If Waldron had attempted to resist arrest, or had attempted to 
get away after arrest, and he had received his injuries in consequence 
of such attempts, or if he had committed any crime for which he 
should be arrested, there might be some reason for appellants’ conten¬ 
tion on that point. But, on the contrary, it is clear that appellee was 
innocent of any wrong doing for which he should be arrested; he 
never even struck back at either of his assailants. He neither resisted 
arrest nor tried to get away when arrested. ’ ’ 

The proprietor or manager of a theater may be civilly liable for 
negligence because of injury occurring to a spectator desiring to 
attend, or attending, performances in the theater. 

The proprietor or manager of a theater, to which the public is 
invited, is bound to use ordinary care and diligence to put and keep 
the theater in a reasonably safe condition for persons attending in 
pursuance of such invitation, and, if he neglects his duty in this 
respect, so that the theater is in fact unsafe, his knowledge or igno¬ 
rance of the defects is immaterial, and he will be liable to a person in¬ 
jured (5). He must use reasonable care in the construction, mainte¬ 
nance, and management of it, having regard to the character of the 
exhibitions given, and the customary conduct of the spectators who 
witness them (6). He must supply a reasonably safe building (7), 
and stage appliances that will prevent the performers from injuring 
spectators (8). The entrances must be safe (9). The proprietor is 
not liable as an insurer of persons attending the performances. He 
is not bound to insure the spectators against any accident or injury 
whatever, but only such as a prudent man would have foreseen as a 
likely result of the condition of the theater; he is bound only to 
exercise reasonable care for their safety (10). 

Where a spectator occupied with friends one of a row of boxes 
in a theater, and had hung his overcoat on a hook attached to the wall 


(5) Currier vs. Boston Music Hall, 135 Mass. 414. 

(6) Scofield vs. Wood, 170 Mass. 415, 49 N. E. 636. 

(7) Dunning vs. Jacobs, 36 N. Y. S. 453; Butcher vs. Syde, 30 N. Y. S. 1073. 

(8) Thompson vs. By. Co., 170 Mass. 577, 49 N. E. 912, 40 L. K. A. 345. 

(9) Oxford vs. Leathe, 165 Mass. 254, 43 N. E. 92. 

(10) Dunning vs. Jacobs, 36 N. Y. S. 453; Am. 4r Bing. Enc. of Law, Vol. 

25, p. 1041. 



26 


in the rear of the box, while witnessing the performance, and the over¬ 
coat was stolen, it was held that the proprietor was not liable as a 
bailee of the coat, and that the spectator could not recover its value 
from him, there being no delivery of the coat to the manager for safe 
keeping (11). 

The proprietor or manager of a theater may be both civilly and 
criminally liable for selling tickets in excess of the number of seats 
in the theater, where there are ordinances prohibiting the blocking of 
aisles by placing chairs therein, and providing that no person or 
persons shall be permitted to stand in or occupy any of the aisles dur¬ 
ing any performance. 

These statutes are passed to secure the safety of the audience. 
Their object is to prevent sacrifice of life, and to facilitate egress 
from the theater in the event of fire, or other panic or casualty in the 
play-house. Such statutes are literally construed, and to recover the 
penalty given for a violation of the act, it is not necessary to prove 
that the manager knew that any persons were standing in the passage 
way, or that he gave any one permission to occupy the passage way. 
That a number of tickets were sold for a performance by the manager’s 
agents, after they knew that the seats in the house were filled, is 
sufficient proof to sustain a judgment in absence of evidence that such 
sale was in opposition to the manager’s wishes (12). The proprietor 
or manager of the theater, though it be let to another under the usual 
percentage contract, may be held responsible for a violation of such 
ordinance (13). In such an ordinance the word ‘‘aisle” means the 
aisle as actually constructed (14). 

Where a theater has a front and a side entrance, both of which 
are permitted to be used, and people are permitted to stand in a space 
necessary for a passage way in the use of the side entrance, alone, 
the manager is liable to the penalty imposed by the law, forbidding 
the manager to cause or permit any person to occupy a passage way 
during a performance (15). 

In several of the States there are laws prohibiting theatrical 
exhibitions on Sunday. These laws have uniformly been held con- 


(11) Pattison vs. Hammerstein, 39 N. Y. S. 1039. 

(12) Fire Dept, of N. T. City vs. Stetson, 14 Daly, 125, 6 N. Y. St. Eep. 255- 

Fire Dept. vs. Bill, 14 N. Y. S. 158. 

(13) Fire Dept. vs. Bill, supra. 

(14) Sturgis vs. Coleman, 77 N. Y. S. 886. 

(15) Sturgis vs. Bayman, 84 N. Y. S. 126. 




27 


stitutional (16), and where there is a general law prohibiting laboring 
on Sunday it was held that one who sells tickets and manages an 
entertainment on that day is guilty of laboring within the purview 
of the statute (17). 

Where there are laws prohibiting the sale of liquors in theaters or 
places of public amusement, the manager who permits such liquors 
to be sold in his amusement house is criminally liable (18). 


(16) Am. 4" Eng. Enc. of Law, Vol. 25, p. 1040. 

(17) Quarles vs. State, 55 Ark. 10, 17 S. W. 269, 14 L. K. A. 192. 

(18) Thompson vs. State, 47 Tenn. 553. 




CHAPTER VII. 


Theater Ticket Speculation. 

Speculation in tickets of admission to theaters has attained such 
proportions in many of the larger cities of the United States that 
the public, as well as the managers of the most reputable theaters, 
have sought for means to destroy it. The practice has so grown in 
recent years that it has become not only an incidental inconvenience 
in the theatrical business, but a positive nuisance to the public. The 
interest of the proprietors of theaters, equally with that of the public, 
points to the necessity of a remedy for the evil. The ticket speculator 
serves no useful purpose, either to the theater or to the public. 
On the contrary, he is a detriment. His calling is not legitimate, 
for it is his business to gain possession of large numbers of tickets 
of admission—which are mere evidences of non-assignable licenses— 
and retain them for sale to the public at an enhanced price over 
the regular terms of admission. His profit, therefore, is made by 
taking advantage of the desires of the public to witness theatrical 
performances, admission to which, by craft, is made a monopoly in 
the hands of the speculator. The speculator interferes with the orderly 
management of the theater, for, by his control of tickets, he creates 
constant friction between the managers thereof and the public, and 
holding these tickets for an advanced and usually an excessive price 
over the regular terms of admission, endeavoring to take advantage 
of the immediate desires of theater goers, he thereby prevents, in 
many cases, patrons from witnessing the performances, and very fre¬ 
quently turns away from the theater possible patronage of the public. 
The inconvenience and difficulty to theatrical management created 
by the theatrical ticket speculator are well illustrated in the facts 
of the cases of Purcell vs. Daly, and Collister vs. Hayman, which are 
referred to herein. 

Theater tickets being, upon principle, mere non-assignable licenses 
(1), the assignment of which puts an end to the license (la), and 

(1) Collister vs. Hayman, 75 N. Y. Sup. 1102; Purcell vs. Daly, 19 Abb. Cas. 

301; Wood vs. Leadhitter, 13 M. & W. 838; Flight vs. Glossop, 2 Bing. 
(N. C.) 125; Coleman vs. Foster, 1 H. & N. 37; Malone vs. Harris, 
11 Irish Ch. Reports, 33; McCrea vs. Marsh, 78 Mass. 211, 71 Am. 
Dec. 745; Burton vs. Scherpf, 83 Mass. 133, 79 Am. Dec. 717; Am. ^ 
Fng. Enc. of Law, Vol. 18, 1140; Hopkins Beal Property, 165, 166; 
Boone, Real Property, title. Licenses, and cases cited. 

(la) Dark vs. Johnston, 55 Pa. St. 164, 93 Am. Dec. 732; Jackson vs. Bab¬ 
cock, 4 Johns. (N. Y.) 418; Prince vs. Case, 10 Conn. 375, 27 Am. 
Dec. 675; Emerson vs. Fish, 6 Me. 200, 19 Am. Dec. 206. 




29 


having usually printed upon them express provisions declaring their 
character as non-transferable licenses, the ticket speculator cannot 
sell the purchaser a right to admission to the theater. Without a 
breach of the contract involved in the original sale of the theater 
tickot, the manager may refuse admittance to the theater to the 
person who presents such a ticket bought from a speculator (2) ; 
nor would the speculator be liable civilly to the person to whom 
he sold the ticket for the refusal of the manager to accept it, for, 
in the analogous sale of a non-transferable ticket of transportation 
sold by a broker, it is held that the person selling the ticket does 
not from the sale undertake anything but the genuineness of the 
ticket, and therefore the broker is not liable to the purchaser for 
the carrier’s refusal to transport him upon any other ground but 
the genuineness of the ticket (3). 

The ticket speculator is therefore engaged in a business per¬ 
meated with fraud, and in the general sale of theater tickets in 
his possession is perpetrating a fraud upon the public in that he is 
selling evidences of no enforcible right. 

The refusal to accept tickets sold by speculators frequently leads 
to furore and violence in the midst of the large crowd that throngs 
the entrance to the theater, to the disturbance of the public peace 
and quiet, and the terror of women and children. The speculator 
is usually a hawker, and in accosting people going to and from the 
theater personally and by outcry, has a tendency to impede peaceful 
travel over the public highway. 

The bona fide patrons of the theater, as well as the public, have 
the undoubted right to protest against the practice of theater ticket 
speculation, and to insist that the managers and the public authorities 
protect them from the exactions, the frauds and the nuisance of 
the speculator. The managers have also unquestioned equities in the 
matter which call for action by the State, for ample licenses are 
exacted of them, and having large property interests involved in their 
places of amusements, they contribute their full quota of taxation 
for governmental support. 

Theaters are places of public amusement. Their history will 
show that they have immemorially been under the protection, regu¬ 
lation, license and control of the sovereign authority (4). 


(2) Purcell vs. Daly, supra; Collisier vs. Eayman, supra. 

(3) Elston vs. Fieldman, 57 Minn. 70, 58 N. W. 830 

(4) Wandall, Latv of the Theater; Geary, Law of Theaters and M'lisic Halls; 

Am. cf Eng. Enc. of Laio. Vol. 25, p. 1020, et seq.; Dill. Muno. Corp., 
Secs. 257-360; Cooley, Const. Lim., p. 734. 



30 


“Theaters and other places of amusements exist wholly under 
the authority and protection of State laws; their managers are com¬ 
monly licensed by the State” (5). Theaters are property devoted 
to a quasi-public use (6). They are property in a business affected 
with a public interest (7), and “where one devotes his property to 
a use in which the public have an interest, he, in effect, grants to 
the public an interest in that use, and must submit to be controlled, 
for the common good, to the extent of the interest he has thus cre¬ 
ated” (7a). They are properly a subject of the power of police 
regulation by the State (8). 

If a business, as that of conducting a theater, is a proper subject 
of police regulation, whose property is devoted to a quasi-public use, 
and which is affected with a public interest, so must its incidents 
and accessories, as, for example, the issue or sale of tickets of admis¬ 
sion thereto, be a subject of police regulation by the State (9). It 
is held that the State may regulate the subject of admissions to 
theaters (10). As theaters may be regulated, it has been held that 
an ordinance forbidding the sale of reserved seats after the doors 
of the theater are opened is valid (11). Another ground for the 
regulation of the sale of theater tickets is the fraud perpetrated upon 


(5) Cooley on Torts, p. 285. 

(6) People vs. King, 110 IST. Y. 418, 18 N. E. 245, 6 Am. St. 389; Donnell vs. 

State, 48 Miss. 661, 12 Am. Rep. 375. 

(7) Cooley, Const. JAm., 73S: Cooley, Principles of Const., p. 234; Harlan, J., 

in Civil Rights Cases, 108 U. S. 9. 

(7a) People vs. King, supra, citing Munn vs. Illinois, 94 U. S. 113. 

(8) Am. 4" Png. Enc. of Law, Vol. 25, pp. 1022, 1026; People vs. King, supra; 

Donnell vs. State, supra; People vs. Budd, 117 N. Y. 1, 22 N. E. 
680; People vs. Walsh, 22 N. E. 683; Cooley Torts, p. 285; Cooley 
Const. Lim.. p. 704, note 1; id., 738; Nuendorf vs. State, 52 How. Pr. 
267; Greenberg vs. Western Turf Assn.. 140 Cal. 357. 73 Pae. 1050, 
and cases cited therein; Cincinnati vs. Brill, 7 N. P. (Oh.) 534. 

(9) State vs. Corbett, 57 Minn. 345, 59 N. W. 317; People vs. Loren^en, 128 

Cal. 431; Fetter, Carriers, Sec. 265; BurdicTc vs. People, 149 Ill. 600, 
36 N. E. 948. 

(10) Baylies vs. Curry, 128 Til. 287, 21 N. E. 595; People vs. King, 110 N. Y. 

418, 18 N. E. 245, 6 Am. St. Rep. 389; Messenger vs. State, 25 Neb. 
674, 41 N. W. 638; Joseph vs. Bidwell, 28 La. Ann. 382; Donnell vs. 
State, 48 Miss. 661, 12 Am. Rep. 375; United States vs. Newcombe, 11 
Phila. 519, Fed. Cas. No. 15868; Munn vs. Illinois, 94 U. S. 113; 
Greenberg vs. Western Turf Assn., 140 Cal. 357, 73 Pac. 1050; State 
vs. Lasater, 68 Tenn. 584. 

(11) Cincinnati vs. Brill, 7 N. P. (Oh.) 534; Contra, District vs. Saville, 1 

McA. 581, 29 Am. Rep. 616. 



31 


the public in the sale of non-transferable admission tickets (12). 

The usual method of regulating theater-ticket brokers is by the 
imposition of a license upon those engaged in the business and by 
excluding them from hawking tickets within certain specified limits 
adjacent to the theater, under severe penalty (13). This is the method 
adopted by New York City, and these provisions are undoubtedly 
valid (14). 

The privilege conferred by such a law licensing theater ticket 
brokers relates only to the right to buy and sell that which is pur¬ 
chasable and vendible, and such privilege cannot change the inherent 
nature of a theater ticket. The theater ticket is a mere personal 
license, and is neither salable nor transferable. Hence, notwithstand¬ 
ing such a privilege to sell theater tickets, the manager cannot be 
enjoined from refusing to accept the tickets sold by a ticket broker 
without the prohibited limits (15). 

It has been shown that the police power extends to the regulation 
of the issue or sale of theater tickets (16), and under this authority, 
as well as under the right to regulate the pursuit of occupations, 
to control and regulate the disposition and use of property, to prevent 
frauds and to preserve public order and prevent nuisances, it would 
undoubtedly be held proper for the State or a municipality to prohibit 
the hawking or peddling: of theater tickets upon the public streets (17). 
Assuming such tickets to be property in the strict sense of the term, 
the prohibition relates not to the right of the owner to sell his 
goods, but to the manner in which he may sell them” (18), and 
V? a provision against fraud upon the public. Such an ordinance 
would not contravene common right, nor would it be unreasonable (19). 
It would also be competent for a city or State to prohibit, with 
a penalty for violation of the law, the sale of theater tickets within 


(12) Purcell vs. Daly; Collister vs. Hayman; Elston vs. Fieldman; State vs. 

Corhett: Burdiclc vs. People^ supra; Commonwealth, vs. Keary, 48 
Atl. 472. 

(13) See Collister vs. Hayman, supra. 

(14) People vs. Bennett, 113 Fed. 515. 

(15) Collister vs. Hayman, supra. 

(16) See note 0, et seq. 

(17) Shelton vs. Mobile, 30 Ala. 540, 68 Am. Dec. 143; Comm. vs. Gardner, 

L33 Pa. St. 284 19 Atl. 550, 19 Am. St. Eep. 645, 7 L. R. A. 666; 
Caldwell vs. Alton, 33 Ill. 416; Ex Parte Lorenzen, 128 Cal. 431, 61 
Pac. 68. 

(18) Comm. vs. Gardner, supra. 

(19) Shelton vs. Mobile, supra. 



32 


certain prescribed distances of the theater (20). Licenses and restric¬ 
tions, in pursuance of the police power and of the right to tax 
occupations, may also be imposed upon the business of hawking, 
peddling or selling theater tickets; but such fees must conform to 
the general rules applicable to the subject of the imposition of license 
taxes (21). 

In the issue and sale of tickets of transportation, many States 
have solved the railroad ticket scalper problem by the passage of 
laws which require carriers to issue tickets only through their author¬ 
ized agents, and which prohibit transfers of such tickets by purchasers. 
These statutes vary in detail, but they have uniformly been sustained 
as a constitutional exercise of the police power (22). 

It is held in the vCases that these statutes do not deprive persons 
of property without due process of law, that the ticket is not taken 
or destroyed within the purview of constitutional prohibition, nor is 
the purchaser deprived of his right to use it, the only limitation 
being on his right to transfer it. It is held that there is no property 
in such a ticket in the hands of the purchaser, nor that a person 
has a constitutional right to insist that these contracts shall be trans¬ 
ferable. Neither are such statutes invalid as class legislation. The 
best illustrative case upon this subject is that of State vs. Corhett, 
wherein the principles of law applicable are lucidly expounded. 

There is a strong analogy between the transportation ticket and 
the theater ticket. Both are incidents and accessories to the respective 
businesses in which they are employed. The theater ticket, as is 
held with the transportation ticket, can be said to be a mere token, 


(20) Colli^ter w. Tlaymcin, 75 N. Y. S. 1101; Comm. vs. Bearse, 132 Mass. 542, 

42 Am. Eep. 450; Myers vs. BaTcer, 120 Ill. 567, 12 N. E. 79, 60 Am. 

Eep. 580, cited in Com. vs. Netcher, 55 N. E. 708; State vs. Bead, 12 
E. I. 137; State r.9. Stovall, 103 N. C. 416. 8 S. E. 900; State vs. 
Cate, 58 N. H. 240; Dorman vs. State, 34 Ala. 216; Barhier vs. 
Connolly, 113 U. S. 27; Whitney vs. Grand Bapids, 71 Mich. 234, 39 
N. W. 40; Mangan vs. State, 76 Ala. 60; In re Ah Kit, 45 Fed. 793; 
Com. vs. Ahrams, 156 Mass. 57, 30 N. E. 79; ex parte McClain, 61 
Cal. 436, 44 Am. Eep. 554; People vs. Bennett, 113 Fed. 515. 

(21) 15 Am. Sr Bng. Bnc. of Law, p. 290. et seq.; 21 id., p. 770, et seq.; Me- 

Quillan, Municipal Ordinances, Chapters xiii, xiv. 

(22) Pry vs. State, 63 Tnd. 522, 30 Am. Eep. 238; Com. vs. Wilson, 14 Phila. 

384; State vs. Corhett. 57 Minn. 345, 59 N. W. 317. 24 L. E. A. 498; 
BurdieJe vs. People, 149 Ill. 600, 36 N. E. 948, 24 L. E. A. 152; Jannin 
vs. State, 51 S. W. 1126, 53 L. E. A. 264; B. B. vs. McConnell, 82 
Fed. 65; tState vs. Bernheim, 46 Pac. 441; Com. vs. Kearny, 48 Atl. 
472; People vs. Warden. 50 N. Y. S. 56; compare People vs. Lorenzen, 
128 Cal. 432; contra. People vs. Warden, 157 N. Y. 116, 51 N. E. 
1006, 43 L. E. A. 264. In this case, there is a vigorous dissenting 
opinion, and it is criticised in Com. vs. Keary and Jannin vs. State, 
supra. 



voucher or receipt to show that the purchaser has paid the price 
demanded, and is likewise evidence of the contract. The theater 
ticket is evidence of the contract for a license to enter the theater; 
the transportation ticket for carriage. “Treating it as the contract 
itself, it is in the nature of a chose in action. No one with whom 
a carrier makes such a contract has an inherent constitutional right 
to insist that it should be assignable. At common law, all choses in 
action were non-assignable, and if the Legislature had deemed it 
necessary, in order to prevent the supposed evils, to provide that all 
transportation tickets should be non-transferable, or even to prohibit 
the issue of tickets altogether, we fail to see why they had not the 
power to do so” (23). But the theater ticket represents a non- 
assignable license, and a prohibition, by the State, of its transfer 
would be a mere legislative declaration of its inherent nature. It 
is not a vendible article; it is, upon principle, neither salable nor 
transferable (24). If, as the courts have held, the transportation 
ticket is not property, the same reasoning by which they attain that 
holding would apply with greater force to the theater ticket, it being 
the token of a revocable and non-assignable license, and lacking at 
least one of the essential elements of property—the quality of dis¬ 
position or transmission by the holder thereof to another person. There 
is absent that complete dominion over it which is manifested in the 
right of property in a thing, and it is held that a license is not 
property (25). “The fact that the purchaser of a ticket is prohibited 
from selling it to whom he pleases does not ‘deprive him of his prop¬ 
erty without due process of law.’ The disposition of property may 
always be limited or regulated where public interests may so re¬ 
quire” (26). 

It is therefore believed that, upon the legal principles and rea¬ 
soning referred to, and upon the strong analogy between transporta¬ 
tion tickets and theater tickets, laws confining the sale of theater 
tickets to the duly authorized and appointed agents of the theater, 
and prohibiting their sale or transfer by other persons, would be 
sustained as a valid exercise of the police power. 

Injunctions have been granted by the courts in pursuance of the 
equity jurisdiction to restrain ticket scalpers from selling non-trans¬ 
ferable transportation tickets, assigned in violation of the orignal con- 

(23) State vs. Corbett, supra. 

(24) Collister vs. Hayman, supra. 

(25) Lecroix vs. Fairfield, 50 Coiiii. 321, 47 Am. Eep. 648; Martin vs. State, 

23 Neb. 371, 36 N. W. 554. 

(26) State vs. Corbett, supra. 



34 


tract of purchase (27), and it is possible that where the fraud and 
injury are such as to warrant it, an analogous remedy may be given 
to the manager to restrain a theater ticket speculator from selling 
non-transferable tickets of admission to the theater. 

The City of San Francisco recently adopted a municipal ordinance 
which is designed to regulate the dealing in tickets of admission to 
places of public amusement and which, under its brief operation, has 
been effective in restricting the number of theater ticket speculators. 
The ordinance provides: 

“It shall be unlawful for any person to sell in the City and 
County of San Francisco any theater ticket, or opera ticket, or ticket 
of admission to a place of amusement or entertainment, at any place 
other than the office of the management of said theater, place of 
amusement or entertainment, without first having taken out and 
obtained a license to be known as a Ticket Peddlers ’ License. ’ ^ 

The license fee is fixed at three hundred dollars a month, and 
every person having a ticket peddler’s license and every person 
engaged in the business of peddling theater, opera or amusement 
tickets shall, on demand of any officer of the Tax Collector’s Depart¬ 
ment, or peace officer, produce and exhibit the same. A violation 
of the ordinance is punishable by fine or imprisonment, or both (28). 

Tennessee is the only State, so far as known, that has legislated 
upon the subject of theater ticket speculation. In 1890 its Legislature 
passed a statute as follows: 

“Any person other than a regularly authorized employee or agent 
of a theater, who shall offer for sale any ticket or certificate of 
admission to any theater, for the sake of profit, is hereby declared to 
be a ticket speculator,” and required to pay an annual privilege 
tax. Every violation of the statute is made a misdemeanor, punish¬ 
able by fine (29). 


(27) B. B. vs. McConnell, 82 Fed. 65; ScJiubacJi vs. McDonald, 65 L. E. A. 136. 

^28) The constitutionality of this ordinance was sustained by the Superior 
Court of the City and County of San Francisco in a habeas corpus 
proceeding instituted to test the validity of the ordinance. 


('29) Act, March 7, 1890, Ex. Sess, (Acts 1890, c. 4, p. 24.) 



CHAPTER VIII. 


Discrimination in Theaters. 

Congress has no power to enact laws preventing discrimination 
between the white and colored races, and enforcing equality of right 
in theaters and other places of public amusement, this matter being 
confided exclusively to the States. 

In the absence of State statutes to the contrary, the manager 
may exclude whom he may desire from the theater, and may make 
and enforce rules providing separation of races in the theater, and 
such separation in the theater may possibly be required and imposed 
by law. 

Where the State has enacted a “civil rights” statute, there can 
be no discrimination based upon race, color or creed. 

The subject of racial discrimination, the exclusion of colored 
people, their separation from persons of the white race in, and the 
regulation and recognition of their right of admission to, theaters and 
other places of like character, became a problem of much importance 
immediately after the close of the Civil War. The Thirteenth Amend¬ 
ment to the Federal Constitution abolished slavery. The Fourteeenth 
Amendment prohibits the States from making any law which shall 
abridge the privileges or immunities of citizens of the United States, 
or deprive any person of life, liberty, or property, without due process 
of law, or deny to any person the equal protection of the laws. The 
Fourteenth Amendment also made the colored man a citizen of the 
United States. It was conceived that these provisions of the Consti¬ 
tution gave persons of the colored race equality before the law, and 
that, under them, there could be no discrimination in public places, 
based upon color, it being assumed that the law demanded equal 
accommodation for all (1). 

Acting under the powers which it conceived were directly con¬ 
ferred on it by the Fourteenth Amendment, Congress in 1875 passed 
what is commonly known as the “Civil Rights Bill” (2). This law 
provided “that all persons within the jurisdiction of the United States 
shall be entitled to the full and equal enjoyment of the accommoda¬ 
tions, advantages, facilities and privileges of inns, public conveyances 
on land or water, theaters, and other places of public amusement; 


(1) Coger vs. Packet Co., 37 la. 145. 

(2) 1 Act March 1, 1875, Secs. 1, 2. 




36 


subject only to the conditions and limitations established by law and 
applicable alike to citizens of every race and color, regardless of any 
previous condition of servitude.” Severe fines and penal damages 
were provided for an infraction of the provisions of the act. 

The constitutionality of this law was soon tested in the Federal 
courts and was passed upon by the Supreme Court of the United 
States in what is commonly known as the “Civil Rights cases” (3), 
which were five cases decided together. One was an information for 
refusing a colored person a seat in the dress circle of Maguire’s 
Theater in San Francisco, and another was an indictment for denying 
to another person the full enjoyment of the accommodations of the 
theater known as the Grand Opera House in New York City, “said 
denial not being made for any reasons by law applicable to citizens 
of every race and color and regardless of any previous condition of 
servitude.” In these cases the “Civil Rights Bill” war declared un¬ 
constitutional, as not being authorized either by the Thirteenth or 
Fourteenth Amendment. “It was held in these cases that the Four¬ 
teenth Amendment is aimed solely at State action, and not the action 
of individuals not sanctioned by State legislation or the authority of 
the State. * * ♦ it was further held that the act could not be 

sustained under the Thirteenth Amendment, abolishing slavery, since 
the refusal to any person of the accommodations of an inn, or a 
public conveyance, or a place of public amusement, by any individual, 
and without any sanction or support from any State law or regulation, 
does not inflict upon such person any manner of servitude or form 
of slavery, as these terms are understood in this country” (4). 

As the legislation which Congress is empowered to enact is merely 
corrective of discriminating State laws, and as “individual right 
is not the subject of the amendment” (5), and as Congress could 
not reach or prohibit the actions of individuals, the managers of 
theaters, in the absence of State laws regulating the subject, were 
free to make such regulations regarding their patrons as they saw fit. 
They exercised the same rights of control in these private concerns 
as they theretofore enjoyed. 

“The business of conducting a theater or places of amusement 
is a private business enterprise, in which, in the absence of any statute 
or ordinance prohibiting, any one may engage. As the theater is a 
private business enterprise and the ticket of admission a mere license. 


(3) 109 u. S. 9. 

(4) Fetter, Carriers, Sec. 256. 

(5) Civil Eights Cases, 109 U. S. 9. 



37 


revocable at the pleasure of the proprietor, the proprietor may make 
whatever regulations for the conduct of his business he chooses, and 
may refuse admission to any one without assigning any reason there¬ 
for’’ (6). “The theater is private property, and is governed so far 
as the public is concerned by such rules and regulations as defendant 
(the manager) may see fit to make. It is in no sense a public 
enterprise, and is consequently not governed by the same rules which 
relate to common carriers and other public institutions of like charac¬ 
ter. This being so, the proprietor has a perfect right tol^ay who 
he will or will not admit to this theater, and should any one apply 
at the box office and desire to purchase tickets and be refused, thpre 
can be no question that he would have no cause of action against 
the proprietor of the theater” (7). “Theaters are not necessaries of 
life, and the proprietors may manage their business in their own 
way. If that way is unfair or unpopular, they will suffer in dimin¬ 
ished receipts” (8). It therefore follows that the proprietor or man¬ 
ager of a theater, in the absence of a State law prohibiting discrim¬ 
ination, or regulating admission to theaters, could exclude persons 
of the colored race from his theater, or, in his discretion, make and 
enforce rules providing for a separation of white and colored people 
therein. In McCrea vs. Marsh (9), and in Burton vs. Scherpf (10), 
persons were excluded from the theater solely on the ground of 
color (11). 

The proprietor of a theater may, in the absence of State legis¬ 
lation, lawfully make and enforce rules that colored persons shall 
occupy separate accommodations in the various grades of seats in 
his theater. 

This proposition was determined in the case of Younger vs. Judah 
(12), decided by the Missouri Supreme Court in 1892. The action 
was instituted by Simpson C. Younger, a colored man, against Abram 
Judah, to recover damages for the alleged wrongful refusal of defend¬ 
ant’s servants to permit plaintiff to occupy seats in defendant’s theater. 


(6) Am. 4" Bng. Enc. of Laic, Vol. 25, p. 1038. 

(7) Purcell vs. Dahj, 19 Abb. N. C. SOI. 

(8) Clifford vs. Brandon, 2 Camp. 358; Pearce vs. Spaulding, 12 Mo. App. 141. 

(9) 12 Gray, 211; 71 Am. Dec. 745. 

(10) 1 Allen, 133; 79 Ain. Dec. 717. 

(11) See Bowlin vs. Lyon, 67 la. 536, 56 Am. Kep. 355; Grannen vs. Racing 

Assn., 153 N. Y. 465, 47 N. E. 896. 

(12) 111 Mo. 303, 19 S. W. 1109, 16 L. R. A. 558. 



38 


for which he had purchased tickets. Younger and another colored 
person had purchased two orchestra seats, but after entering the the¬ 
ater were refused the seats, and were offered the return of the money 
paid, or seats in the balcony, the rule of the house being that colored 
persons should occupy seats in the balcony. There was judgment for 
the defendant, which was affirmed on appeal. 

In sustaining the judgment the Supreme Court said: ‘‘The tickets 
for seats in the orchestra were sold to the plaintiff on the supposition 
that they were to be used by white persons. It is clear, too, that 
defendant had a rule to the effect that colored persons attending his 
place of amusement should occupy seats in the balcony; and the 
only real question in this case was whether he had the right to 
make and enforce such a rule. If he had, the plaintiff had no cause 
of action. It is earnestly insisted that such a rule amounts to dis¬ 
crimination against colored persons, and that such discrimination is 
prohibited by the Fourteenth Amendment of the Constitution of the 
United States. The clauses of that amendment relied upon by the 
plaintiff are those whereby it is declared that “no State shall make 
or enforce any law which shall abridge the privileges and immunities 
of the citizens of the United States, nor deny to any person within 
its jurisdiction the equal protection of the laws.’ These clauses do 
not undertake to confer new rights, nor do they undertake to regulate 
individual rights. They are simply prohibitory of State legislation 
and State action. This was held in the ‘ Civil Rights cases. ’ As there 
stated, ‘individual invasion of individual rights is not the subject 
of the amendment. ’ This State has enacted no law having any appli¬ 
cation to the present case. It does not undertake to say how theaters 
and other places of amusement shall be managed. As the State does 
not by itself regulate, or through the City of Kansas undertake to 
regulate, theaters, and, as the clauses of the Fourteenth Amendment 
are prohibitory of State action only, they have nothing to do with 
the question in hand. There is nothing upon which the prohibitions 
can operate. * * * 

“Many of the States have enacted laws known as ‘civil rights 
statutes,’ and we are cited to cases upholding and giving effect to 
such laws. But as we have no such statute, these cases furnish no 
aid in the solution of the question now in hand. 

“It is conceded that a common carrier may make and enforce 
reasonable rules for seating passengers, and it has been held that 
such a carrier, in the absence of any statute to the contrary, may 
separate white and black passengers in a public conveyance. 

“If common carriers may make and enforce such rules, there 
can be no good reason assigned why proprietors of theaters may 


39 


not do the same thing. This being so, it is not necessary to a proper 
disposition of this case to say how far or to what extent theaters 
are to be regarded as public places; nor is it necessary to say to 
what extent they may be made public places by statute or local 
municipal law. In any event, the proprietors of theaters may make 
and enforce such rules as the one now in question. The defendant’s 
rule was no more than a reasonable regulation which he had a right 
to make and enforce.” 

There are in the Constitutions of several of the States provisions 
for the enjoyment of civil rights (13), and there are laws in most 
of the States providing that no citizen of the State shall, by reason 
of race, color, or previous condition, be excepted or excluded from 
the full and equal enjoyment of the accommodations and privileges 
of inns, hotels, restaurants, common carriers, theaters and other places 
of public amusement (14). Such laws prohibit discrimination in the 
public or quasi-public places. These statutes have uniformly been 
held valid as a proper exercise of the police power (15), and nearly 
all of them are couched in similar terms, the “Civil Rights Bill,” 
passed by Congress and declared unconstitutional, being taken as the 
model. Some States make non-compliance with the statute a penal 
offense, and others give merely a civil remedy. 

The scope and purpose of these laws have been well defined in 
the adjudicated cases. “The purpose of the statute,” says the court 
in one case, “was to declare that no person should be deprived of 
any of the advantages enumerated, upon the ground of race, creed 
or color, and that its prohibition was intended to apply to cases of 
that character, and to none other. It is plain that the Legislature 
did not intend to confer upon every person all the rights, advantages 
and privileges in places of amusement, or accommodation, which might 
be enjoyed by another. Any discrimination not based upon race, 
creed or color does not fall within the condemnation of the stat- 


(13) Const. Ala., Art. 1, Sec. 38; Const. Ark., Art. 2, Sec. 3; Const. La., Art. 

13, Sec. 188; Const. S. C., Art. 1, Sec. 39; Const. Va., Art. 2, Sec. 
2; Const. Fla., Art. 14, Sec. 1. 

(14) Arkansas, California, Florida, Illinois, Indiana, Massachusetts, New 

Jersey, New York, Ohio, Fhode Island, Iowa, Nebraska, Michigan, 

Minnesota, Colorado, South Carolina, and perhaps several other states. 

(15) People vs. Kivo, 110 N. Y. 418, 18 N. E. 245, 6 Am. St. Rep. 389; 

Baylies vs. Curry, 128 111. 2S7, 21 N. E. 595; Ferguson vs. Geis, 82 

Mich. 358, 46 N. W. 718; Messenger vs. State, 25 Neb. 674, 41 N. W. 
638; Cecil vs. Green, 161 Ill. 265, 43 N. E. 1105; FrucJiey vs. Eagle- 
.son, 15 Ind. App. 88, 43 N. E. 146; Bryan vs. Adler, 72 N. W. 368; 
Blione v.s. Loomis, 77 N. \V. 32; Donnell vs. State, 48 Miss. 661, 12 
Am. Rep. 375; Barbier vs. Connolly, 113 U. S. 27; Joseph vs. Bidwell, 
28 La. Ann. 382. 



40 


ute” (16). “Under these laws,” said the court in another case, 
“there must be and is an absolute, unconditional equality of white 
and colored men before the law. The white man can have no rights 
or privileges under the law, which are denied the black man. There 
can be no separation in public places between people on account of 
color alone which the law will sanction” (17). “The intent of the 
law,” says the Court in another case, sustaining the constitutionality 
of the Mississippi equal rights statute, “is that all persons may have 
equal accommodations in vehicles of common carriers, at inns, hotels, 
theaters, and other places of public amusement, upon terms of paying 
the usual prices therefor. If they are excluded, it must not be on 
account of race” (18). 

In the cases which have come before the courts for a violation 
of equal rights statutes, it is held that an indictment is sufficient 
where the words of the statute are followed (19), and in suing 
upon the statutory penalty, the pleading must show facts that bring 
the plaintiff within the statute (20). Where the statute is made 
applicable to all citizens within the State, it is valid so far as it 
relates to citizens (21), and there must be an allegation and proof 
that the person against whom there is discrimination is a citizen 
of the State (22). One who violates the law making it a misde¬ 
meanor for a person to discriminate in the places mentioned in the 
statute becomes liable to an action for civil damages, at the suit of 
the person injured by the discrimination, and it is not necessary in 
such action to declare upon, or in any way to refer to, the penal 
statute (23). Such statutes cannot by implication be extended, by 
general terms, to include places not mentioned therein (24). It is 
clear that there must be an allegation and proof that the person 
discriminated against was excluded upon the ground of color. It has 


(16) Grannen vs. Racing Assn., 153 N. Y. 465, 47 N. E. 896. 

(17) Ferguson vs. Geis, 82 Mich. "58, 46 N. W. 718. 

(18) Donnell vs. State, 48 Miss. 661, 12 An;. Rep. 375. 

(19) People vs. King, 110 N. Y. 418, 18 N. E. 245, 6 Am. St. 389. 

(20) FrucTiey vs. Eagleson, 15 Tnd. App. 88, 43 N. E. 146. 

(21) Messenger vs. State, 25 Neb. 674, 41 N. W. 638. 

(22) Messenger vs. State, supra. 

(23) Ferguson vs. Geis, 82 Mich. 358, 9 L. R. A. 589; Joseph vs. Bidwell, 28 

La. Ann. 382, 26 .4.m. Rep. 102; Baylies vs. Curry, 128 Ill. 287. 

(24) Cecil vs. Green, 161 Ill. 265, 43 N. E. 1105; Rhone vs. Loomis, 77 N. W. 

32; Keller vs. Koeher, 55 N. E. 1002. 



41 


been held that evidence of a refusal to sell such persons tickets such 
as were sold to white persons who applied supports the allegation 
that they were excluded (25). Evidence to prove rules assigning 
separate but equal accommodations is inadmissible under equal rights 
statutes, and is no defense (26), and an offer to provide separate 
but equal accommodations is not a compliance with the statute (27), 
though the offer is made to a servant or agent (28). A denial of 
the right to accommodations by an agent renders the principle liable 
to civil damages (29). Where the statute provides that any person 
violating it shall forfeit to the individual injured a sum not to exceed 
a certain amount, and on conviction, a fine also, the amount to be 
forfeited is not controlled by the actual pecuniary loss or damage (30). 
Under the Ohio statute providing “that any person’’ who shall violate 
the law shall be punished, etc., it was held that an action for the 
penalty cannot be maintained against two persons as partners (31). 
The offender is criminally liable for a violation of the law (32). In 
a criminal prosecution, or in a civil suit for the penalty, for a 
violation of the equal rights statute, the gist of the complaint is exclu¬ 
sion or discrimination because of race or color, and for causes not 
applicable to all alike, it would be incumbent upon the party aggrieved 
not only to prove exclusion or discrimination, but that such exclusion 
or discrimination was made on the ground of race or color. In an 
action for the statutory penalty under a civil right law, where the 
complaint alleges that the privileges, etc., were denied because plain¬ 
tiff was colored, other reasons why they were denied may be shown 
under the general denial (33). 


(25) People vs. King, 18 N. E. 245. 

(26) Paylies vs. Curry, 128 Til. 287, 21 N. E. 545; Messenger vs. State, 25 

Neb. 674, 41 N. W. 638; Fruchey vs. Eagleson, 15 Ind. App. 88, 
43 N. E. 146. 

(27) Ferguson vs. Gci^, 82 Mich. 358, 9 L. R. A. 589. 

(28) Fruchey vs. Eagleson, 15 Ind. App. 88; Bryan vs. Adler, 72 N. W. 368. 

(29) Ferguson vs. Geis, supra. 

(30) Fruchey vs. Eagleson, supra. 

(31) Eargo vs. Meyers, 4 Oh. Cir. Ct. 275. 

(32) Bryan vs. Adler, supra. 

(33) Fruchey vs. Eagleson, 15 Incl. App. 88, 43 N. E. 146. See note to Mo 

Crea vs. Marsh, 71 .\ra. Dec. 749. 



42 


Where there is a law prohibiting the giving of theatrical per¬ 
formances on Sunday, the sale of a theater ticket for a Sunday per¬ 
formance is illegal, and no action lies for refusing to admit the pur¬ 
chaser in violation of the civil rights law (34). 

Where the owner of an opera house had rented the same to 
another, and the latter had absolute control and disposal thereof for 
the evening, except that the internal conduct thereof should remain 
under the exclusive control of the ushers, doorkeeper, and ticket agents 
in the employ and service of the owner, and a colored person was 
expelled from the opera house because of race, a nonsuit was granted 
in a suit against the owner, for the reason that he was not legally 
responsible or liable for the acts of those who made the expulsion (35). 

The State of Tennessee has upon its statute books a most extraor¬ 
dinary law which is generally understood to have been passed to 
avoid the supposed effects of the civil rights law passed by Congress. 
It gives a right of action to the keeper of a theater against any 
person guilty of turbulent or riotous conduct within or about the 
theater (36). 

“The first section of the act abrogates the common law giving 
a right of action to any person excluded from any hotel or public 
means of transportation or place of amusement, and gives to the pro¬ 
prietors of such hotels, places of amusement, or means of transporta¬ 
tion, the right or option to admit or reject any person they may choose, 
giving the same right of control as the owner has over his private 
residence or private carriage. 

“The second section is as follows: ‘That a right of action is 
hereby given to any keeper of any hotel, inn, theater or public house, 
common carrier and restaurant, against persons guilty of turbulent 
or riotous conduct within or about the same; and any person found 
guilty of so doing may be indicted and fined not less than one 
hundred dollars, and the offender shall be liable to a forfeiture of 
five hundred dollars, and the owner or person so offended against 
may sue in his own name for the same. ’ ” 

This act was held constitutional as not violative of constitutional 
provision forbidding excessive fines and cruel and unusual punish¬ 
ments (37). 

Many of the States have also passed laws requiring common car- 


(34) Warren vs. Fountain Square Theater Co., 5 Low. D. 559, 7 N. P. 538. 

(35) Mackey vs. Tahor, 22 Colo. 67, 43 Pac. 143. 

(36) Act of 1875, Ch. 130, Sec. 2; M. & V. Code, 2298 b; Shan. Code, Sec. 3047. 

(37) State vs. Lasater, 68 Tenn. 584; Stover vs. Lasater, 76 Tenn. 631. 






43 


riers, under penalty, to furnish separate but equal accommodations 
for white and colored passengers. These laws have been held to be 
a valid exercise of the police power of the State, and enforcible (38) 
so long as equality of right is maintained. Upon the same principles 
involved in the cases sustaining such laws, and in the exercise of 
the same power invoked to enact them, it is believed that similar 
legislation providing for the separation of the races in theaters, while 
maintaining equality of right in every particular, would likewise be 
held to be within the power of the States to pass. 

In conclusion, it is suggested that the topics discussed in the 
preceding pages have been treated from the point of view of general 
law and fundamental doctrines. There may, in various places, be 
local customs or regulations affecting the subjects discussed, which 
could not conveniently, consistent with the general plan, be incor¬ 
porated in the brochure. As to these^ the admonition is given to 
the manager that it is his duty to become acquainted with such local 
laws, and to comply therewith. It is not conceived, however, that 
they could materially affect the status of the theater ticket or change 
the general rules of law already referred to. 


(38) Fetter, Carriers, See. 257. 







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INDEX 


ADMISSION TO THEATEH, 
regulated by State, 30. 
not specifically enforcible, 16, 17. 

ASSIGNMENT OF THEATER, 
revokes ticket, 5. 

AUDIENCE, 

right to criticise, 18 

(TVIL RIGHTS ACTS, 

criminal prosecution under, 41. 
damage under, 41. 
national act, 36. 

non-compliance with, generally, 41. 

by agents, 41. 

not extended by implication, 40. 
partners not liable under, 41. 
pleading under, 40. 
proof of citizenship under, 40. 

exclusion because of color, 41. 
proprietor of ‘theater not liable under, 42. 
provisions in state constitutions for, 39. 
rules inadmissible under, 41. 
sale of ticket for Sunday void under, 42. 
scope and purpose of, 39. 

Tennessee statute on, 42. 

where applicable to citizens only, 40. 

CONDITIONS ON TICKETS, 
etfect of, 13. 
how made, 13. 
purchaser bound by, 13. 

takes with notice of, 13. 
valid and enforcible, 12. 

CRITICISM OF PERFORMANCE, 
audience right to, 18. 
limit of right to, 18. 

DAMAGE, 

measure for revocation of ticket, 15, 16. 
under civil rights acts, 41. 

DISCRIMINATION IN THEATER, 
allowable, when, 37. 

Congress cannot prohibit, 35. 
enforcible by statute, 43. 
generally, 35. 
liability for, 40. 
state may prohibit, 35. 

EXCLUSION OF PERSONS FROM THEATER, 
drunken, boisterous or immoral people, 9. 
ejection of, 9, 14. 
force to etfect, 9, 14, 
return of consideration upon, 9. 



EXPULSION FEOM THEATER, 
due notice necessary, 14. 
force used to effect, 14. 
undue force creates liability, 14. 

FORCE, 

used to effect revocation, 14. 

prevent entrance to theater, 14. 

FORGERY, 

in theater tickets, 17. 

FRAUD, 

in sale of non-transferable ticket, 31. 

INJURY TO PATRONS,. 

manager liable for, 21, 25, 26. 

LEASE OF THEATER, 
revokes ticket, 5. 

T;rABILITY OF MANAGER, 

for employees’ or agents’ acts, 21. 
exclusion of persons, 25. 
discrimination, 40. 
injury to patrons,. 21, 25. 
negligence, 25, 26. 
property of patrons, 26. 
sale of standing room, 26. 
unsafe theater, 25. 

LICENSE, 

assignment terminates, 10. 
conveys no property interest, 11. 
extends only to licensee, 10. 
how revoked, 5, 6. 
nature of, 3, 6. 
not assignable, 10^ 11. 
personal privilege, 10. 

to grantor, 10. 
revocable, 5, 6. 

IJQITOR, 

sale in theater, 27. 

MANAGER OF THEATER, 

duty to provide safe theater,, 25. 
ignorance of unsafety no defense, 25. 
liable for undue force used, 14. 
may make rules for theater, 9. 

impose conditions on tickets, 13. 
render ticket non-assignable, 10. 
sell reserved seats, 16. 

need not return consideration of ticket, 16. 
sell specific seats, 16. 

not compelled to accept broker’s ticket, 16. 
liable as bailee, 26. 

NEW YORK, 

ordinance regulating brokers, 31. 

NON-ASSIGNABILITY OF TICKET, 
attempt to assign, revokes, 10. 
manager may provide for, 10. 
ticket non-assignable, 10. 

ORDINANCE, 

prohibiting sale of tickets, 30. 

ticket brokers, 31, 34. 
sale of tickets in excess of seats, 26. 


PASS, 

a revocable license, 8. 
issuance of, enjoined, 17. 

PASSENGER TICKETS, 

analogy to theater tickets, 3. 4. 
contract for passage, 4. 
evidence of contract, 4. 

POLICE POWER, 

control over theater, .30. 

sale of tickets, 30. 

PRICE OF TICKET, 

manager need not return, 16. 

RESERVED SEATS. 

manager may sell, 16. 
purchaser entitled to seat, 16. 17. 
sale of prohibited, 30. 

retitrn checks. 

non-assignable, 17. > 

revocable, 17. 

REVOCABILITY OF TICKET, 
assignment of theater on, 5. 
not necessary to return price, 6. 
subject to state laws, 8. 

REVOCATION OF TICKET, 
damage for, 15. 
entrance to theater after, 6. 
refusal to leave after, 7. 
riorhts after, 14. 
suit for, on contract, 15. 

RIGHTS AFTER REVOCATION, 
force may be used. 14. 
manager resoonsible for undue force, 14. 
spectator may be ejected, 14. 

prevented entrance, 14, 

RULES, 

manager may make, 9. 

sale" of tickets, 

police regulation of, 30. 

SAN FRANCISCO, 

ticket brokers’ ordinance, 34. 

SPECTATOR, 

right to seat, 16, 17. 

SPECULATION IN THEATER TICKETS, 
p-enerally, 28. 

injunction to restrain. 31. 
prohibited, 31. 

regulation of, in New York, 31. 
right to regulate, 31. 

Tennessee law, 34. 

STANDING ROOM, 
sale of, 17. 

spectator must be informed, 17. 

STATUTES AFFECTING THEATER TICKETS, 
California statute, 8. 
forbidding ticket selling, 30. 

Tennessee statute, 34. 


mar 2 3P05 


SUNDAY, 

performance on^ 27. 

sale of ticket for, void, 42. 

TENNESSEE STATUTE, 

providing discrimination, 42. 
regulating ticket speculators, 84. 

THEATER, 

assignment of revokes ticket, 5, 7. 
discrimination in, 35. 
in absence of statute, 36, 37. 
lease of, revokes ticket, 5. 
private enterprise, 9. 
public use in, 30. 
regulation of, by state, S, 29, 30. 
subject to police power, 8. 
transfer of, effect, 7. 
under state control, 30. 

THEATER TICKET, 

analog}'- to passenger tickets, 3, 4. 
contract for a license, 4. 
evidence of contract, 4. 
executory contract, 6. 
issue of, may be prohibited, 33. 
license to enter theater, 1, 2, 3. 
for pleasure, 2. 
to witness ))erforinance, 3. 
not property, 33. 

not saleable or transferable, 8, 10, 11, 12. 

personal license, 7. 

return of consideration of, 5. 

revocable,, 5, 6, 7. 

sale for wrong night. 17. 

speculation in, 28. 

TI(:KET SPECULATOR, 

engaged in fraudulent business, 29. 
injunction to restrain, 33. 
license of, 32. 

may be suppressed, 31. x 

regulation of, 31. 

ticket bought from refused, 29. 


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